Professor Richard J. Grunawalt
INTERNATIONAL LAW STUDIES
Volume 72
Library of Congress Cataloging-in'Publication Data
The law of military operations : liber amicorum Jack Grunawalt /
edited by Michael N. Schmitt.
p. cm. — (International law studies ; v. 72)
Includes index.
ISBN 1-884733-10-7 (hardcover)
1. International police. 2. United Nations — Armed Forces.
3. War, Maritime (International law) 4. Naval law — United States.
5. Grunawalt, Jack. I. Grunawalt, Jack. II. Schmitt, Michael N.
III. Series
JX1295.U4 vol. 72
[KZ6374]
341.6— dc21 98-16990
CIP
Printed in the United States of America
INTERNATIONAL LAW STUDIES
Volume 72
The Law of Military Operations
Liber Amicorum Professor Jack Grunawalt
Michael N. Schmitt
Editor
Naval War College Press
Newport, Rhode Island
1998
Contents
Foreword ix
Preface xi
Sailor-Scholar — An Introduction xv
I. Secrets in Plain View: Covert Action the U.S. Way
M.E. Bowman 1
II. International Law and Naval Operations
James H. Doyle, Jr 17
III. The Law of War in Historical Perspective
Leslie C. Green 39
IV. Shooting Down Drug Traffickers
Phillip A. Johnson 79
V. War Crimes
Howard S. Levie 95
VI. The U.S. Freedom of Navigation Program: Policy,
Procedure and Future
Dennis Mandsager 113
VII. The Framework in the Founding Act for NATO -Russia
Joint Peacekeeping Operations
Myron H. Nordquist 129
VIII. Guarding the Coast: Alien Migrant Interdiction
Operations at Sea
Gary W. Palmer 157
IX. The Maritime Claims Reference Manual and the Law
of Baselines
J. Ashley Roach 181
X. The Principle of the Military Objective in the Law of
Armed Conflict
Horace B. Robertson, Jr 197
XI. Crafting the Rules of Engagement for Haiti
Stephen A. Rose 225
XII. Clipped Wings: Effective and Legal No-fly Zone Rules of
Engagement
Michael N. Schmitt 239
XIII. The Emerging Role of NATO in UN Peace Enforcement
Operations
James P. Terry 297
XIV. Nuclear Weapons and the World Court: The ICJ's Advisory
Opinion and Its Significance for U.S. Strategic Doctrine
Robert F. Turner 309
XV. Anticipatory Collective Self-Defense in the Charter Era:
What the Treaties Have Said
George K. Walker 365
XVI. Permanent Concerns, Legal Norms, and the Changing
International Order
Robert S.Wood 427
Contributors 439
Index 445
Vlll
Foreword
The International Law Studies "Blue Book" series was initiated by the Naval War
College in 1901 to publish essays, treatises and articles that contribute to the broader
understanding of international law. This, the seventy-second volume of that series, is
a collection of articles prepared by friends of Professor Richard J. "Jack" Grunawalt to
mark the occasion of his retirement as the Director, Oceans Law and Policy
Department of the Center for Naval Warfare Studies, Naval War College.
Jack Grunawalt came to the Naval War College in 1986 as the Charles H.
Stockton Professor of International Law, and held that Chair until becoming the
Director, Oceans Law and Policy Department in 1989. Under his leadership of its
international law program, the Naval War College has regained its historic stature
as the world's preeminent military institution for the study and articulation of the
rules of law governing the world's oceans, both in time of peace and in time of war.
It is the renaissance of the "Blue Books" during Professor Grunawalt's tenure
that has contributed significantly to the restoration of the Naval War College's
stature in the study of international law. Indeed, this is the ninth volume in the
series that has been published since 1990. Thus, it is most appropriate that Jack
Grunawalt's contributions to the Naval War College be recognized through the
publication of a "Blue Book" in his honor. It is also a testament to the high regard in
which he is held that so many notable contributors, both military and civilian,
would prepare articles for this special edition, which is unique in the long history of
the "Blue Book" series.
While the opinions expressed in this volume are those of the individual authors
and not necessarily those of the United States Navy or the Naval War College, they
make a valuable contribution to the study of the varied areas of international law
that are addressed. On behalf of the Secretary of the Navy, the Chief of Naval
Operations and the Commandant of the Marine Corps, I extend to the contributing
authors and the editor our gratitude and thanks. I would also like to thank Jack
Grunawalt on behalf of the faculty and students of the Naval War College who have
been privileged to be associated with him and to have learned from him.
JAMES R. STARK
Rear Admiral, U.S. Navy
President, Naval War College
Preface
Every so often someone comes along who makes a real difference — the kind
of difference that, in the great scheme of things, matters. Professor Jack
Grunawalt is one such individual, for it is no exaggeration to label him the
father of operational law in the United States military. Indeed, before I came to
the Naval War College, an Air Force colleague pulled me aside to "warn" me
about Jack Grunawalt, the man who saw himself as the "keeper of the ROE"
(rules of engagement) . After three years of working for him, I am convinced he
is not only the "keeper," but that this is a good thing for our nation. Today,
there are simply no military operations conducted by U.S. forces, or even those
of other countries, that do not evidence the hand of Jack Grunawalt. Whether
directly through application of the Standing Rules of Engagement he helped to
craft or indirectly through the thousands of Grunawalt- trained judge advocates
and operators around the world, his influence is omnipresent. This "keeper"
has guarded and nurtured his charge well.
Moreover, he also authored what is clearly the lead law of military
operations manual in the world, The Commanders Handbook on the Law of
Naval Operations, NWP-9 (now 1-14M). Copies of that masterpiece can be
found from the bridges of Latin American warships and the ICRC Legal
Adviser's Office to the Yale Law School Library and the Combined Air
Operations Center for Operation NORTHERN WATCH. I know of no other
work in recent times that can pretend to make a comparable claim.
His greatest legacy, however, lies not in these accomplishments or those
described in the introduction to this book. Rather, it lies in his influence on the
individuals who will continue to shape operational law in the years to come. He
is very much the Myres McDougal of this corpus of law, for the mark of Jack
Grunawalt, like McDougal, is indelibly imprinted on all those who have had
the good fortune to have worked with him or benefited from his selfless
mentorship. Of course, the Grunawalt experience is not always pleasant; a
crusty opinionated sea captain he remains — even in the ivory halls of
academia. But it is always an experience from which one emerges bettered.
So as Jack Grunawalt prepares to head off to the adventure-filled retirement
he justly deserves, those of us who have had the honor of working closely with
him over the years deemed it appropriate to honor him with this Liber
Amicorum, this book of friends. The topic was self-evident — the law of military
operations — Jack's law. Who the contributors should be was also obvious. Jack
Grunawalt often talks of the Oceans Law and Policy (OLP) "family." It includes
present and former faculty members of the Naval War College, members of the
OLP advisory board, holders of the Stockton Chair of International Law at the
College, and "special friends." It is to the OLP family that we turned to produce
this work.
Hopefully, the end product is a book that represents what Jack Grunawalt is
all about. Consider the contributors, who range from vice admirals to
lieutenant colonels; Army, Air Force, Navy, Marine, and Coast Guard officers;
service academy and law school professors; a war college dean; CINC legal
advisers; and a Joint Chiefs legal adviser. Indeed, the age gap between the
youngest and oldest contributor is a half-century. It is a high tribute to Jack that
his influence is felt across such a diverse group.
Then there are the topics. Contributors were given only the guidance
(bearing in mind the book was a tribute to Jack Grunawalt) that they should
write about operational law. Look carefully at the result. The subjects range
from the law of war to the law of the sea; rules of engagement for "occupying" a
Caribbean island to enforcing no-fly zones over Iraq; collective self-defense to
covert action; the use of nuclear weapons to peace operations. Yet, the very
diversity of topics reflects the diversity of operational law itself. It also
represents the range of issues to which the Grunawalt influence has been
brought to bear. Jack Grunawalt is no more or less at ease talking about
maritime intercept operations than nuclear warfare ... or theoretical
international relations ... or exploitation of resources in the exclusive
economic zone. He is a man of extraordinary scope, and the only defining
parameter of this book was that contributions somehow involve military
operations.
Many have been involved in the creation of this expression of admiration for
Professor Jack Grunawalt. The Naval War College Foundation provided a
generous grant to support its publication. Captains Dan Brennock and Ralph
Thomas of the Center for Naval Warfare Studies creatively ensured additional
funding whenever needed. Captain Thomas also agreed to proof drafts during
my absence on an extended hardship research trip to London, Bonn, and
Geneva. Lieutenant Commander Sarah Supnick, USNR, selflessly volunteered
her own time, and friendship, as associate editor for over two months during a
critical period of production. Ms. Gina Vieira at the War College's Publications
Division generated draft after draft, always with an unfailing sense of humor.
Lieutenant Colonel James Duncan of the Oceans Law and Policy Department
took the book from proofs to publication with typical Marine determination.
Special thanks is due to the Naval War College Press, particularly this volume's
editor, Ms. Pat Goodrich. Few can imagine Pat's professionalism in managing a
gaggle of type- A lawyers, oblivious to any rules of style or grammar, seemingly
XII
concerned only with the travails of endnotes. Finally, a personal thanks to
Lorraine and Danielle who, as always, suffered silently through my
preoccupation with the task at hand.
On behalf of all Jack's friends, we wish him fair winds and following seas.
MICHAEL N. SCHMITT, Lieutenant Colonel, U.S. Air Force
Professor of Law
United States Air Force Academy
xni
SailoivScholar
Ralph Thomas
I MUST BEGIN WITH A MODIFICATION of the standard disclaimer that
each of us in government service is required to include with any
publication: "The views expressed herein are my own and not necessarily those
of Jack Grunawalt's friends, whose reflections on Jack I've been asked to
represent." Though the memories of Jack that I relate are my own, they also
attempt to synthesize all that he means to each of us. The only debate would
be in the selection of adjectives that most aptly describe him. Should it be the
"highest" or "greatest" respect? Should it be "enormous" or "extraordinary"
accomplishments ?
To capture the essence of the legend (a word used to describe him only when
he is out of earshot) that is Jack Grunawalt seemed an impossibly presumptuous
task for me. There are others who have known him longer, those he counts as his
closest friends, and those to whom he turns for the wise counsel that has guided
and assisted him in his careers as an active duty Navy judge advocate and then as
a professor on the faculty of the Naval War College. I have had, however, the
unique opportunity (and the greatest personal and professional privilege) of not
only knowing Jack for many years but of having been closely associated with him
for seven years here at the Naval War College. For five of those years I have
served as the Deputy Director, Oceans Law and Policy Department, but
whenever I am asked what my position is, I normally answer, "Jack Grunawalt's
deputy." The former (and formal) title often generates quizzical expressions,
while the latter prompts immediate recognition.
I have deliberately not included specific references to those who have
worked with Jack over the years and whose friendship and advice he values so
highly. Among them are individuals who have measureably contributed to the
development of operational law as it is practiced today in the armed services , as
well as many who have assisted Jack in his efforts to restore the tradition of
excellence in the study of law at the Naval War College. Were I to do so, I
would almost certainly omit many deserving of mention — something I would
not want to do. Each of you knows who you are. I would also like to apologize in
advance to Jack, who, while he can never be described as retiring, has always
been uncomfortable with introductions that describe his many
accomplishments. His typical response is often a deflecting "I wish my mother
had heard that." Well, Mrs. Grunawalt you should hear what your son has
accomplished.
Today, many people know Jack primarily for his accomplishments as the
Stockton Professor of International Law and the Director, Oceans Law and
Policy Department at the Naval War College. In fact, he has been at the War
College long enough for me to have learned to refer to him as "Professor"
Grunawalt — after all those years when he was "Captain" Grunawalt, Judge
Advocate General's Corps, United States Navy. Indeed, it was as Commander
and then as Captain Grunawalt that he began to exert the influence that
eventually rendered him the honorary title of "the father of operational law" as
we know it today. While he was not the first Navy judge advocate we would
refer to as an "operational lawyer," he is acknowledged as the officer who firmly
established judge advocates as key advisers to operational commanders on all
aspects of their mission. It is he who led the effort to integrate lawyers onto the
battle staff and into the command center and to acquire the security clearances
necessary for their participation in the decision-making process. Navy judge
advocates now accept those as "givens" — not so long ago they were not. That
today they are, we owe largely to Captain Grunawalt.
In the process of becoming what I consider to be the finest operational
lawyer the Navy JAG Corps ever raised, Jack Grunawalt served under a
generation of Navy leaders that are themselves legends — Admiral Thomas
Hayward, Admiral James Holloway, Admiral James Watkins, Admiral William
Crowe, and Admiral Robert Long. His assignments, which included Special
Counsel to the Chief of Naval Operations and Staff Judge Advocate to the
Commander in Chief, United States Pacific Command, reflect the high regard
in which he is held.
Following service in Vietnam as the Deputy Director, U.S. Naval Law
Center, Da Nang, then-Commander Grunawalt was presented with his first
opportunity to be heavily involved in the practice of operational law when he
was assigned as the Staff Judge Advocate to the Commander, Seventh Fleet,
the command responsible for directing the Navy's efforts during the Vietnam
xvi
War. There Jack had the opportunity to see the results of flawed rules of
engagement. I've never heard him say so, but I suspect his career4ong (both
careers) drive to ensure that rules of engagement never again produced such
results began with that assignment.
But had that not been the motivation, clearly his service as the Counsel for
the Long Commission that investigated the tragic bombing on 16 October
1983 of the Marine Battalion Landing Team (BLT) Headquarters in Beirut,
Lebanon, focused his attention on the critical role of rules of engagement.
Specifically selected to be the Counsel by Admiral Long, who headed the
Commission, Jack learned of the now infamous Blue Card/White Card Rules of
Engagement (ROE) that the Marines used in carrying out their security
responsibilities. The robust Blue Card ROE set forth the rules for guarding the
relocated U.S. Embassy following its destruction by a car bomb in April 1983.
Much more restrained were the "peacekeeping" White Card ROE in effect at
Beirut International Airport where the Marines were headquartered. It was the
latter that substantially reduced the ability of the Marines on perimeter
security to stop the explosive-laden truck that destroyed the BLT
Headquarters. In one moment, 241 American military personnel, mostly
Marines, died. I believe Jack's experience on the Long Commission resulted in
a personal crusade (a word I've never heard him use) to do whatever he could
to ensure that no more American military personnel would never die because
of a failure of rules of engagement.
Captain Grunawalt capped his active duty service by authoring The
Commander s Handbook on the Law of Naval Operations , or as it is better known,
NWP 9. Regarded as the finest military manual of its kind in the world, it
provides legal guidance to operational commanders on the many complex
situations they confront, both in peacetime and during conflict.
NWP 9 evidences one of the consistent themes that have characterized Jack
Grunawalt's service — an appreciation of the difficult role of the line officer,
who sails the Navy's ships and flies her aircraft. (Many times I've heard him say
during a rules of engagement presentation to a group of commanding officers,
"Rules of engagement can be hard, just like everything else you do.") With that
in mind, Jack wrote NWP 9 not for lawyers, but for operators, recognizing that
they make the decisions on how to operate and fight their ships and aircraft.
Therefore, and as Jack often notes, there are no footnotes, case citations, nor
Latin phrases in The Commanders Handbook (now in its third iteration, it is
today known as NWP 1-14M).
Given his practical approach to the law, it should come as little surprise that
when asked to define the phrase "operational law," a new phrase coined to
xvn
describe the practice within the Department of Defense of what had previously
been referred to as international law, Professor Grunawalt stated quite simply
that it "is whatever it is that assists the commander in accomplishing the
mission. Perhaps it's providing advice on a difficult law of the sea or law of
armed conflict question, or assisting with the development of rules of
engagement for a sensitive operation, or perhaps it's assisting in the convening
of a court-martial, or drafting a will or power of attorney." These few words
capture the essence of Jack Grunawalt — it's the lawyer's role to do whatever it
takes to help the operational commander — but Jack always adds an important
caveat. While the lawyer's role is to be proactive and creative in assisting the
commander to accomplish a desired result, it is the lawyer's responsibility to
ensure that the result and the manner in which it is accomplished are
consistent with the rule of law. As Jack has observed so frequently, the values of
the United States as a nation and the personal values of American military
professionals are reflected in the law, and no action must ever be taken which
compromises those values. It was to this principle — the conduct of military
operations within the rule of law — to which he dedicated himself most fully
upon his move to the Naval War College following retirement from the Navy.
The study and teaching of law had been an integral part of the Naval War
College program for decades. Indeed, it is reflected in Admiral Stephen B.
Luce's first Order, dated 2 September 1885, to the first Naval War College
class: "Lectures will begin on September 7. The working days will be Monday,
Tuesday, Wednesday, Thursday, and Friday. The lectures on International
Law will be delivered daily at 10 am. ..." The first civilian professor joined the
War College faculty over 110 years ago, when James R. Soley was appointed to
teach international law. That professorship, which became the Stockton Chair
in 1967, has been held by some of the most eminent international legal scholars
in the world. They include John Bassett Moore, later a judge of the Permanent
Court of International Justice; Professor Manley O. Hudson, who went on to
become a judge on the International Court of Justice; Berkeley Professor Hans
Kelsen; and Newport's own, Professor Howard Levie.
In 1986, now retired Captain Jack Grunawalt was appointed to the Chair. The
first chairholder in the history of the Stockton Chair to move directly from a
military career into the College's oldest and most prestigious chair, he held it for an
unprecedented three years. Then in 1989, he proposed the creation of an Oceans
Law and Policy Department within the Center for Naval Warfare Studies.
As Dr. Bob Wood, then and now the Dean of the Center for Naval Warfare,
observed, "When [Jack] first came into my office to propose an Oceans Law
and Policy Department, it was evident he spoke with considerable authority.
xvin
His vision entailed it as no less than a center of excellence which would
become the authority on operational law — a repository of current practice, a
place of original scholarship, and the teacher not only of U.S. Armed Forces,
but of the forces of friendly States as well. He envisioned that the Oceans Law
and Policy Department would draw the parameters of operational law into the
21 st century." Dr. Wood continued, "An ancient proverb proclaimed that
young men would dream dreams and old men would have visions. I concluded
either that Jack was subject to psychedelic hallucinations or that he was a
dreamer and visionary of tremendous power. Happily for the nation, — and for
me — he was certainly the latter."
Jack was appointed the first director of the newly formed department, a
position he occupied until his retirement in the summer of 1998. In the years
preceding Jack's arrival, the War College had witnessed a decline in the
emphasis placed on international law. But the dedicated visionary that spoke to
Dr. Wood of his dream of a center of excellence oversaw the restoration of the
College's reputation as the world's pre-eminent institution for the study and
teaching of the law of naval operations, both in peacetime and during conflict.
In his contribution to this volume, Admiral James H. Doyle describes the
truly remarkable "Grunawalt era" at the Naval War College, and speaks of
Professor Grunawalt's many accomplishments. I will defer to Admiral Doyle
and refrain from repeating them here; rest assured, however, that they can be
described as enormous, indeed, extraordinary. Among them was his
revitalization of a program that had in great part established the College's
position on the international legal scene — the publication of the
"International Law Studies" series, recognized throughout the world for its
contribution to the understanding of international law. Through Jack's
diligence and dedication, the series is now as productive and useful as it has
ever been in its nearly 100-year history. Therefore, on the occasion of his
retirement from the Naval War College, Jack's closest friends, colleagues, and
mentors have collaborated to honor him with this "Blue Book" — Jack's "Blue
Book" if you will. We could think of no more fitting tribute to this
sailor-scholar. On behalf of all those whose lives have been touched, either
professionally or personally, by the legend that is Jack Grunawalt, we humbly
ask that he accept this token of our respect and admiration.
So, Mrs. Grunawalt, if you are proud of all your son has accomplished . . . you
should be. He has served his Navy and his country with unparalleled devotion
during times of both peace and war. Along the way, he selflessly shared his
knowledge and vision with us. It is our honor to have had that great
opportunity.
xix
I
Secrets in Plain View:
Covert Action the U.S. Way
M.E. Bowman
E AMERICANS HAVE A UNIQUE CULTURE. We champion openness
in government but implement many policies in secret. Historically, we
have been quick to fight for national honor but equally quick to publicly and
mercilessly criticize ourselves; a future historian might even conclude that we
defined our culture by airing dirty laundry. From the very beginning, we publicly
debated our national morality — from slavery to the Indian campaigns; from
Mexico to the Maine; from Vietnam to Panama. We even exposed "secret"
executive actions by televising the introspective and painful investigations of such
notable events as Iran-Contra and the Church Committee hearings. Probably
more than any other nation in the world, we can expect that sooner or later
virtually any executive activity of the United States will be publicly scrutinized.
Executive Action
Lacking precise definition, executive action has become a term of art that
describes activities designed to influence behavior. Executive action often is
"secret," but not always. If secret, it often is coercive. When practiced by the
United States, it is always a tool of foreign, never domestic, policy.
Covert Action the US, Way
Executive action may be applied directly — by military or paramilitary force,
economic leverage, or political activities — or it may consist of mere persuasion.
Executive action may also be applied indirectly, for example by using
surrogates, propaganda, or even covert military, economic, and political
activities. Each of these techniques will be a focus, from time to time, for covert
action. 1
Covert action practiced by the United States shares its cultural heritage
with intelligence. A scant few decades ago, nations would tacitly concede, but
rarely admit, the common practice of international intelligence gathering — of
spying on other nations. The United States was no exception.
Prior to World War II, the United States was, perhaps, the least experienced
spy master of the developed nations. 2 U.S. intelligence activities had been a
desultory lot, sometimes favored, sometimes vilified, rarely admitted and
always in jeopardy of extinction. Yet, at the end of World War II, we not only
planned to continue into peacetime the intelligence institutions conceived in
war, we also codified and published the intent. More recently, we undertook a
similar catharsis with covert action.
American Candor
The National Security Act of 1947 was a mold for much of contemporary
U.S. Government intelligence practice. A legislative behemoth originally
devoted to overhauling the military establishment, the draft Act was seized
upon as a handy tool by which to create the National Security Council, a
Director of Central Intelligence, and the Central Intelligence Agency. Each is
an institution important enough, and certainly visible enough, to obscure what
may be the most significant aspect of the Act. By this peacetime legislation, the
United States officially and publicly recognized intelligence gathering as a
legitimate foreign policy process. 3
The Act was eloquent testimony to the belated acceptance by the United
States of international intelligence gathering that included even reading other
people's mail. 4 Perhaps even more significant, however, was the world
reaction — or lack thereof. Global ennui eloquently testified to international
acceptance of intelligence activities. 5
The 1947 Act did more, however. Just as the Act acknowledged a purpose
to gather intelligence internationally, it also acknowledged — albeit
obliquely — an acceptance of the necessity to engage in covert action. In
understatement worthy of our British heritage, the Act required that the
M.E. Bowman
Central Intelligence Agency perform such other functions as the National
Security Council might direct. 6
The meaning of that language in the 1947 Act might have been less than
obvious at its creation, but four decades later it was clarified. By that point in
history, it was probably unnecessary to clarify the fact that the U.S. engages in
international covert action, but the clarification was, nevertheless, instructive.
In 1991, in an era when the sovereignty of developing nations was at its
emotional apex, the Congress of the United States once again did something
that only a secure democracy could dare. Not unlike its 1947 legislative
admission, Congress publicly confirmed its policy of peacetime covert action by
amending the U.S. Code to more explicitly acknowledge covert action as U.S.
policy. 7
Congress statutorily confirmed an acceptance of covert influence on the
affairs of other nations. This easily was our most profound statement on U.S.
willingness to mold other nations to our liking. It was also unusual candor in an
era when proliferation of new nation-States elevated sovereign emotions to
new heights. 8 Nevertheless, as with the 1947 legislation, not a ripple disturbed
the surface of the nation-state system.
U.S. Covert Action
Because covert action amounts to interference with sovereign rights,
nations always seek to distance themselves from the activity. 9 The reason is
axiomatic — covert actions inherently, and universally, are fractious political
issues that flaunt a universal need for rules of international behavior.
Nevertheless, from time to time, all nations find it necessary to cloak official
processes from public view; certainly, that was never more true than during the
era of the Cold War. 10 Adversaries and ideology aside, the Cold War interest in
avoiding nuclear conflict promoted a relatively high tolerance for covert action
as well as understood "rules" for the genre. "Plausible deniability" was a key
goal; indeed, in that bipolar world it became rule number one. 11
Our limited experience with modern covert action originates primarily in
World War II. 12 Ours is a culture that easily tolerates covert actions as a
daring-do adjunct to armed combat, but to surreptitiously influence (or
change) other governments in peacetime is far more difficult for us to
countenance. Not unlike our history of intelligence gathering, covert action
has no luster in the United States — we simply don't like secrecy. We like to
consider ourselves as ingenuous, open, and honest. We prefer to regard
deviousness and secrecy as the product of evil empires. More importantly, we
Covert Action the US, Way
believe strongly in a government of shared political power. Covert action,
which definitionally restricts participatory activity, seems somehow
antithetical to these ideals.
Despite this cultural inhibition, covert action was "writ large" in the political
environment of the post' War period. The fall of Nazism and the rise of
communism ushered in an era of political tension, paranoia, economic
distress — and nuclear terror. Covert actions seemed to be ideally suited to
accomplish foreign policy goals without unacceptable risk of rekindling military
conflict. Prodded by Cold War fears, the number of covert actions multiplied.
Communist insurgencies and communist-inspired political subversion had
become ubiquitous reality during the tedious process of rebuilding, or building
anew, from a war-ravaged world. Polarized political views, coupled with a
tenuous peace, made traditional foreign policy slow and cumbersome in a
fast-developing world. By contrast, covert action beckoned policy makers with
a promise of swift, high-impact alternatives ideally suited for post-war
containment policy. The result, observed Henry Kissinger, is that all Presidents
since World War II "have felt a need for covert operations in the gray area
between formal diplomacy and military intervention." 13
Shielding the United States as well as the President from public scrutiny, 14
even marginal success served to breed new covert actions. Knowledge of covert
operations became so commonplace that the United States was accused of
being responsible for nearly all internal difficulties worldwide. 15 Not
surprisingly, the American political consensus of the war years that had
insulated intelligence and covert action from close scrutiny did not survive the
advent of peace.
Close scrutiny did not occur overnight, but when it started, it became an
irresistible force. Covert actions begun under the OSS continued through the
both formative and mature years of the CIA. Then, more plebeian domestic
concerns related to U.S. intelligence activities focused legislative attention on
covert activities as well. Our proclivity for participatory democracy prevailed;
all "secret" foreign policy came up for debate, and covert action was no
exception. Under the sharp scrutiny of Senator Frank Church, the intelligence
community suffered the slings and arrows of what many might justifiably
consider to have been righteous hindsight.
Post-war domestic abuses of intelligence resources are a matter of history.
Even so, most observers today will concede that many of the "abuses" are more
clearly perceived as such when seen through the eyes of the citizen of the 1970s
than through the eyes of citizens of the 1930s, 40s, or 50s, when the relevant
activities were initiated. The interim years had elevated personal privacy rights
M.E. Bowman
to pedestal heights and sharpened the analysis of Constitutional guarantees
against government intrusion. As each passing day made it less likely that
communism would absorb the United States, apocalyptic post-war fears
receded to focus on more personal concerns. Tolerance for "Big Brother"
decreased, and government increasingly was put on a tighter leash.
In this climate, the Church Committee began its well-known probe of
United States' intelligence activity. It inquired, inter alia, into the scope of U.S.
covert action, its value, its techniques, and its necessity. 16 It questioned
whether covert action had become a substitute for decision-making, whether a
covert capability should be maintained, and, if so, whether it should remain in
the CIA.
The Committee pointedly concluded its analysis with the observation that
covert action was not included in the CIA charter (the National Security Act of
1947), but conceded that the Act had a savings clause to provide for
contingencies. Specifically, the Act empowered the CIA to "perform such
other functions and duties related to intelligence affecting the national security
as the National Security Council may from time to time direct." 17 Relying on
this clause, the National Security Council did issue a series of directives
specifying the CIA's covert mission. 18 Then came the invasion of South Korea.
As with Germany, World War II's end left Korea divided into spheres of
influence. The Soviets controlled the North and the United States the South.
Unlike the European experience, however, both powers withdrew, leaving the
Koreans to settle their own quarrels. The result was a conflagration that
threatened bipolar stalemate. In this situation, covert operations seemed
especially desirable.
With modest beginnings in Korea, covert operations quickly supplied their
own justification. By 1953, moderate successes in Korea had prompted the
authorization of covert operations in forty-eight countries. 19 As covert
capability matured and expanded, it became necessary to create within the
CIA the Directorate for Plans (DDP) to absorb and make more efficient the
covert action capability. 20 This was not merely a matter of efficiency.
Organizing the DDP reflected concern for the expansive interest shown by the
Soviet Union in the Third World and a felt need to combat that interest.
Covert actions of this era were extensive, varied, and expensive — and
wholly Executive in origin. All were undertaken pursuant to the inherent,
albeit nebulous, Constitutional authority of the President. There is room, of
course, for traditional legislative/executive debate over the Constitutional
authority to authorize covert action, but, at least in that period of our history, it
5
Covert Action the US. Way
is quite likely that Congress wanted no part of the covert operations tar baby.
Senator Leverett Saltonstall explained Congressional inactivity this way:
It is not a question of reluctance on the part of CIA officials to speak to us . . .
it is a question of our reluctance ... to seek information ... on subjects which I
personally, as a member of Congress and as a citizen, would rather not have. .
21
Legislative Initiatives
Not until 1974 did Congress seriously begin to consider a role for itself in
covert operations. Up to that time, the only outlet for Congressional concerns
over covert action had been the traditional briefing process, but the expansive
growth of covert actions soon proved this to be inadequate. According to one
of the modern architects of covert action, Clark Clifford, the use of covert
action had become a primary official activity which simply had "gotten out of
hand." 22 Congressional remediation, equally traditional, was legislation.
Frustrated generally by lack of knowledge, 23 and specifically by massive
covert operations (and expenditures) in Peru, Congress amended the Foreign
Assistance Act to deny expenditures for covert operations unless, a
Presidential finding of importance to the national security preceded the
operation. 24 The Hughes-Ryan Amendment also mandated a reporting
requirement and increased the number of committees to be informed of covert
actions. It was, to be sure, watershed legislation, but for many it was simply too
little too late. In the final analysis, the Amendment was ineffective because it
lacked teeth; nevertheless, Congress had thrown down a marker.
Soon thereafter, a long-smoldering conflict between Nicaragua and
Honduras erupted. Politically, the United States looked with disfavor on the
Nicaraguan regime and adopted a policy of supporting Honduras, or, more
accurately, of opposing Nicaragua. U.S. actions in support of Contra guerrillas
were both overt and covert, each prompting substantial criticism and venting
emotions not unlike those of the Vietnam era. One result was an amendment
to the 1983 Defense Appropriations Bill designed to end all aid to the
Contras. 25 Originally a classified addition to the 1983 Intelligence
Authorization Act, the Boland Amendment restricted the use of appropriated
funds to overthrow the Sandinista government and limited CIA covert
operations to the interdiction of Nicaraguan arms supplies.
Of course, the Boland Amendment accomplished neither goal. Of little
more substantive effect than the Hughes-Ryan amendment, yet another spark
M.E. Bowman
was required to rekindle Congressional scrutiny and to prompt an oversight
role. Two were quickly forthcoming.
The first catalyst was a second legislative "fix," dubbed Boland II. This
legislation prohibited military or paramilitary support for the Contras by the
CIA, DoD, "or any other agency or entity involved in intelligence activities." 26
The net result, according to Bud McFarlane, National Security Advisor, was to
transfer the responsibility to the National Security Council staff, because "The
President had made it clear that he wanted a job done." 27 The "job,"
unfortunately, would include an ineptly conceived plan to interrupt commerce
by mining Nicaraguan harbors. It was a covert action that quickly lost its
covertness in implementation.
This "covert" action prompted an international outcry, 28 as well as adverse
international legal opinion. 29 Worse, however, was the domestic controversy.
The Nicaraguan mining affair resulted in truly vitriolic debates over covert
action, with the predictable result of diminishing public acceptance for the
tactic.
Kindling even greater consternation, however, was the second spark — the
Iran^Contra affair. Executive Order 12,333 vested in the CIA exclusive
jurisdiction over "special activities," a euphemism for covert action, "unless the
President determines that another agency is more likely to achieve a particular
objective." 30 At the time of drafting, it was generally assumed that the "other
agency" would be the Department of Defense, but the vagueness of the
language permitted the White House itself, through the NSC staff, to engage
directly in a covert action, with disastrous results. 31
After this disgrace, covert action acquired something of a pariah status. In
the wake of "Iran-Contra" and Nicaraguan mining, covert action translated as
"dirty tricks," somehow antithetical to the "American way." American
reluctance to countenance either government secrecy or official failure was
reinforced and the undesirable nature of covert action seemingly confirmed. 32
The result of national anguish over these "failures," not necessarily wise, not
necessarily unwise, was new legislation that defined covert action. 33 It was not
definition that Congress sought, however, but rather a threefold means of
gaining limited procedural control and limited oversight of covert action. First,
it sought to gain more timely information from the President concerning
Executive intent to implement covert actions. Second, Congress intended to
limit the ability of the President to avoid accountability to Congress with
"plausible deniability." 34 Finally, Congress decided to opt for a very a limited
measure of fiscal control over the broad Executive authority to authorize a
covert action.
7
Covert Action the US. Way
The implementation of these procedures includes oversight authority vested
in the intelligence committees. Importantly, the legislation prohibits
authorization of a covert action, or expenditure of appropriated funds for one,
unless the President first makes a written finding, specifying the action arm of
government, that the activity is necessary to support identifiable foreign policy
objectives, and that it is important to the national security. 35 It further requires
that the intelligence committees be kept fully and currently informed. 36
Covert Action: The Congressional View
A commonly accepted, though noninclusive, list of covert actions and,
presumably, of "special activities" is propaganda, 37 political action, 38
paramilitary operations, 39 coup d'etat, and intelligence support. 40 Whatever it
might include, the legislation clearly rejects the definition of "special activities"
found in Executive Order 12333. 41 The reason for the rejection, however, is
marginally helpful.
The drafters intended to exclude the over-broad concept of foreign policy
interests from their definition of "covert action." The vast reach of foreign
policy simply makes it necessary to negate that frame of reference. The clear
intent was to create an imprecise but manageable definition that would limit
reporting only to a class of activities that the drafters believed should be
brought to their attention.
Neither the statute nor the statutory history cogently defines the activities
included in the concept of events designed to influence political, economic, or
military conditions abroad. That, however, is inherently rational. An
excessively rigid statute easily could eliminate altogether any capability for
covert action by levying conditions that would make secrecy implausible or by
demanding too much prior definition of operations that require flexibility and
decision-making in the field.
Recognizing the "easier said than done" nature of their effort, Congress set
about to define by exclusion the scope of their interest in covert action. The
statute, and most of the legislative history, focus on what covert action is not* 2
To oversimplify, excluded from Congressional oversight are the traditional
activities of the military, the intelligence community, diplomats and law
enforcement officers. Remaining to be included, therefore, are covert
paramilitary operations, propaganda, and covert political activities — and
whatever the "nontraditional" counterparts to the exempted activities might
be.
8
M.E. Bowman
The statutory history makes clear that "covert action" is intended to include
even nonattribu table efforts in support of a noncovert activity. The sine qua
non of a covert action, however, is not secrecy, whether in whole or in part, but
rather plausible deniability. If plausible deniability is not viable, or if it is not to
be claimed, the activity undertaken simply is not a covert action. Therefore,
even "activities undertaken in secret but where the role of the United States
will be disclosed or acknowledged once such activities take place are not covert
actions." 43
Covert Action in Practice
The practical problem, however, is more subtle than mere secrecy and
deniability. Chicken and egg issues are a natural concomitant of covert action.
Frequently it is impossible logically to differentiate between covert actions and
exempted activities. Payments for intelligence acquisition may strengthen the
coffers of dissident groups sufficiently to mount a successful revolution. Is the
purpose to gain intelligence or to influence events? The two have very different
legislative consequences. Support given to local intelligence or police
organizations might have the effect of neutralizing hostile intelligence services,
but also of gaining valuable intelligence information. Which is the collateral
effect? Does the potential for an unintended consequence trigger reporting? 44
Similarly quixotic is the distinction between forceful and non-forceful
intervention. No longer defined merely by territorial integrity, international
stability now rests on myriad complex and intangible features. In turn, this
means that covert action, with its undercurrent of manipulation, easily can tip
the fine balance of national and international perceptions and fears. A covert
operation to support paramilitary forces may have the effect of influencing
political programs; but just as likely, support for political programs may
promote esteem for dissident paramilitary organizations. The natural effect of
foreign policy, whether covert or overt, and regardless of the use of force, may
be lowering the threshold for what will be perceived as unacceptable
intervention.
Despite the risks, the United States' experience in this century seems to
confirm a national self-interest in maintaining a covert action capability. It is as
true today as ever in history that a covert action adjunct of foreign policy
remains necessary. It is also true, however, that covert operations come with an
ever-increasing cost. Inaptly applied, covert action can be a damaging
instrument. Unfortunately, covert action and plausible deniability can be
seductive.
Covert Action the US. Way
Secrecy gives the covert enterprise a poignant emphasis. Absent the glare of
sunlight and the public impact of overt force, covert action easily can become a
beguiling adventure. History indicates that policy makers sometimes find it an
irresistible temptation to opt for covert action in lieu, rather than in support, of
foreign policy. 4 Used as a knee-jerk substitute for policy, it is rarely effective;
more importantly, the failure of a covert option puts the option at risk for the
future. Used properly, covert actions may serve national and even
international needs.
The Balance
Therein lies the legislative purpose. Although the precise authority for
covert action is debatable, it is clear that both the Congress and the Executive
believe it a necessary option. Both presume that legal authority exists to engage
in covert action and each presumes to have a Constitutionally authorized, if
not precisely defined, role.
The legal authorities for covert action were discussed in the Church
Committee's Final Report, without closure, and continue to be debated today.
In asserting its current role, Congress legislatively created procedural
requirements precedent to the Executive authorizing covert action. The
laudable intent was to ensure coherent policy, but it is a goal that requires
surgical skill. The reasons for this are threefold.
1) Secrecy: Although covert action is generally acknowledged to be a
valuable tool of statecraft, it is a limited tool, wholly dependent on an
acceptable measure of secrecy. A failure of secrecy risks the foreign policy to
which the covert action is dedicated, exposes national warts, and, in the
extreme, may leave only the distressing options of withdrawal or overt military
intervention. Painful experience demonstrates that secrecy is as perishable as it
is necessary. The concomitant of secrecy likewise is threefold.
a) Need to know: To maintain secrecy, it follows that operational
knowledge must be narrowly restricted. Removing knowledge from the
effective controls of the Executive, and committing it to the less constrained
legislature, puts the enterprise and those involved at additional risk. That does
not mean the risk is unreasonable, merely that it exists. 4
b) Reasonable scope: Perhaps more important is the barnyard bromide
that one shouldn't bite off more than one can chew. Covert actions must be of a
sufficiently limited scope and duration that they can be accomplished within
the parameters o( secrecy. History demonstrates that overly ambitious
undertakings are likely to lose their mantle of secrecy.
10
M.E. Bowman
c) Practical benefit: There is a practical side to secrecy as well. Normally,
secrecy will be required to ensure the safety of persons involved. Not
infrequently, secrecy is required to preserve the covert option for a repetitive,
future use. Sometimes it is even useful to take advantage of an opportunity to
cast another in the role of unscrupulous actor. 47
2) Plausible deniability: Unlike clandestine operations, which are intended not
to be known at all, covert operations generally are known, but the national actors
remain invisible. The reason for this essential feature harkens to concepts of both
sovereignty and diplomacy. The nation-state system that grew out of the Peace
of Westphalia (1648) hinges on sovereign inviolability, for lack of which
international instability historically has been the result. However, nations do
interfere with the internal affairs of other nations; therefore, a means of
preserving stability despite interference with sovereign rights is required.
To lessen the risk of war or political polarization of states, the ability of the
actor to disclaim responsibility, and of the affected nation to disclaim knowledge,
is a necessary charade. Without plausible deniability, nations would be forced
into humiliating political retreat and to curtail, or even sever, diplomatic ties in
the face of a sovereign affront. At the extremes, even war can result.
3) Political Judgment: Finally, the most subjective and least manageable
problem associated with shared Constitutional powers is the exercise of shared
political judgment. 48 The real question is not whether both the executive and
the legislative branches of government have a role in foreign policy; rather, it is
how each may fulfill its perceived role without bringing to fruition the very real
problem of interfering with the other.
Legislation is inherently inflexible and slow to be displaced, even when
national needs change. Executive decision-making capability can be prompted,
for good or bad, by the exigencies of the moment. Cutting Solomon's baby in
half, we should expect that legislation affecting covert action, properly
considered, would (1) slow impulse, but not impede decision-making, with
procedural rather than substantive requirements; (2) promote executive
decision-making that takes into account popular will, and, (3) permit the
Executive to remain sufficiently flexible to meet changing or novel
circumstances. Objectively, the Congressional attempt to control covert
action seems to meet these goals.
A Potent Option
By any standard, covert action is less offensive than overt intervention, but
it remains politically risky. 49 Such are the sensitivities of nations that today
11
Covert Action the US. Way
even economic or political coercion may be viewed with the same jaundiced
eye as the world once viewed physical intervention. 50 This will certainly be the
case as the tensions of the Cold War continue to dissipate. With the world less
concerned about global conflict, intrusive behavior that once might have been
tolerated as anemic warfare, or justified as a measure of extra-legal justice, will
become less acceptable. Nevertheless, just as overt but coercive diplomatic and
economic activities will be tolerated, even if condemned, so will covert actions.
There are limits, however, beyond which the American public will not
countenance covert action and both the executive and legislative branches of
government must know and respect those limits. The bottom line is that the
President cannot, without repercussion, engage in a covert action that the
people would not approve were they to know of the facts and circumstances. The
Congress, without covert action capabilities itself, has chosen to serve as the
people's overseer.
With what is hopefully the wisdom of Solomon, both the executive and
legislative branches publicly acknowledge a willingness to engage in covert
action. The world knows, if it cares to know, that the U.S. is willing to interfere
in the internal affairs of other sovereigns. It knows also that Congressional
involvement negates the probability, if not the possibility, of a rogue executive.
Finally, the world also must presume that the American citizenry would, if it
could be fully informed, approve the covert actions undertaken.
What makes the United States unique is that we dislike the fundamentals of
our own policy. We take national pride in promoting self-determination, public
disclosure, and public diplomacy. We dislike secrecy. We dislike covert action.
Still, despite our moralistic foundation, we sidestep Westphalian
sovereignty and acknowledge a commitment to secret foreign policy. Even we
find it anomalous that we will interfere with the internal affairs of other
nations. But ours is, after all, a unique culture.
Notes
1 . During the 1950's, when covert action was a growing business, it included "political and
economic actions, propaganda, and paramilitary activities, . . . planned and executed ... to
conceal the identity of the sponsor or else to permit the sponsor's plausible denial of the action."
See, e.g. , U.S. SENATE, I FINAL REPORT OF THE SELECT COMMITTEE TO STUDY GOVERNMENT
Operations With Respect to Intelligence Activities, 94th Cong., 2d Sess. (1976), at
540 (hereinafter FINAL REPORT). The meaning is largely unchanged today.
2. The United States is not without a history of intelligence activities. Indeed, it has a rich
history, but a checkered one, not favored with continuity until recently. See STEPHEN KNOTT,
Secret and Sanctioned (1996); G.J.A. OToole, Honorable Treachery (1991);
12
M.E. Bowman
Edward Sayle, The Historical Underpinnings of the U.S. Intelligence Community, INT'L J.
Intelligence and Counterintelligence, Spring 1986, at l.
3. 50 U.S.C. §401 et seq.; See also M. LOWENTHAL, THE CENTRAL INTELLIGENCE
AGENCY: ORGANIZATIONAL HISTORY 2 (Congressional Research Service Rep. No. 78-1 68F,
1978).
4. See, e.g., Exec. Order No. 12,333, 46 Fed. Reg. 59941 ("United States Intelligence
Activities," (1981), § 1.11 (b)). That Order, as did its predecessors, publicly assigns to the
National Security Agency (NSA) responsibility to establish and operate a unified signals
intelligence operation to control, collect, process, and disseminate signals intelligence for
national foreign intelligence and counterintelligence; in essence, to read the communications of
other nations.
5. See generally M.E. Bowman, Intelligence and International Law, INT'L J. INTELLIGENCE
AND COUNTERINTELLIGENCE, Fall 1995, at 321.
6. See infra note 18.
7. See, e.g., 50 U.S.C. § 413b (1996), which expressly limits covert actions to activities
which the President finds are necessary to support U.S. foreign policy.
8. By the 1990s, the numbers of nation-States had again dramatically increased, numbering
in excess of 180.
9. The Church Committee also defined covert action as "clandestine activity designed to
influence foreign governments, events, organizations, or persons in support of U.S. foreign policy
conducted in such a way that the involvement of the U.S. Government is not apparent." FINAL
REPORT, supra note 1, at 131. Today "clandestine" refers more precisely to actions not intended
to be known at all or ones ascribed to other actors.
10. See generally JOHN PRADOS, PRESIDENT'S SECRET WARS (1986).
11. Plausible deniability became a household phrase with Iran-Contra, but it did not
originate then. The term was evolutionary. The Church Committee noted that the term had
been used to shield the President from knowledge — placing the onus for covert action on
subordinates. Current legislative history clearly shows that Congress intends that the President
be unable to use it to avoid accountability to Congress.
12. But cf. KNOTT, supra note 2. Knott's excellent treatise on covert operations documents
early use by presidents, but, as with intelligence, no expertise ever really developed until World
War II, and no singular responsibility for covert operations was assigned until even later.
13. HENRY KISSINGER, WHITE HOUSE YEARS 658-659 (1979).
14. President Harry Truman discovered the essential dilemma early. Covert actions required
oversight, but he knew that he could not plausibly deny activities too openly discussed at official
councils. His solution, in an era of "containment" foreign policy, was to have covert action
worked out of a special panel in which he did not participate. See PRADOS, supra note 10, at 79.
President Dwight Eisenhower, who criticized the Truman foreign policy of containment, quickly
learned that the problems of control versus security and plausible deniability were colossal. He,
too, came to rely on a special group to run covert operations. By then, however, covert
operations had grown so rapidly that secret oversight was more a wish than a reality. See id. at
144-148.
15. 1975 testimony of former Secretary of Defense Clark Clifford, cited in FINAL REPORT,
supra note 1, at 141.
16. Possibly to capture attention, this scrutiny focused initially on assassination before
moving to a concentrated focus on the intelligence community and the FBI. See generally AN
Interim Report of the Select Committee to Study Governmental Operations
with Respect to Intelligence Activities, Rep. No. 94-465 (1975). The Committee
13
Covert Action the US* Way
denounced ill-advised assassination plots, but not assassination itself. Not until President Jimmy
Carter banned the technique by Executive Order did it cease to be a potential arrow in the
national security quiver.
17. See FINAL REPORT, supra note 1, at 153. The language has been slightly modified by
subsequent legislation. It now requires that the Director of the Central Intelligence Agency
"perform such other functions and duties related to intelligence affecting the national security as
the President or the National Security Council may direct." 50 U.S.C. §403-3 (d) (5).
18. E.g., NSC-4-A authorized covert psychological operations and NSC 10/2 authorized
covert political and paramilitary operations. Both were directed primarily at the Soviet Union,
but, of course, containment policy meant they were geographically unfocused.
19. Final Report, supra note l, at 145.
20. For a brief description of this process, see John B. Chomeau, Covert Actions Proper Role in
U.S. Policy, INT'L J. INTELLIGENCE AND COUNTERINTELLIGENCE, Fall 1988, at 407, 410-411.
See also PRADOS, supra note 10, at 110-111.
21. CONG. REC. S. 5292 (daily ed. Apr. 9, 1956) cited in FINAL REPORT, supra note 1, at 149.
22. See FINAL REPORT, supra note 1, at 153.
23. The Church Committee noted that covert activities mounted into the hundreds in each
of the administrations of Presidents Dwight Eisenhower, John Kennedy, and Lyndon Johnson.
Final Report, supra note l, at 56.
24. 22 Pub. L. 93-559, 50 U.S.C. §2422 (1974). President Gerald Ford personally opposed
the personal certification requirement in his recommendations on the legislation. See FINAL
REPORT, supra note 1 at 58, n. 26.
25. Pub. L. No. 97-377, §793, 46 Stat. 1865 (1982).
26. Pub. L. No. 98-473, §8066, 98 Stat. 1935 (1984). See also Pub. L. No. 99-591
(Department of Defense Appropriations Act, 1987) §9037, 100 Stat. 3341-108; §9045, 100
Stat. 3341-109 (1986).
27. REPORT OF THE CONGRESSIONAL COMMITTEES INVESTIGATING THE IRAN-CONTRA
AFFAIR WITH THE MINORITY VIEW 48-52 (Brinkley and Engelberg eds., 1988). The National
Security Council was, and is, a policy-advising body, not an "agency or entity involved in
intelligence activities."
28. Compare Christopher C. Joyner & Michael A. Grimaldi, The United States and Nicaragua:
Reflections on the Lawfulness of Contemporary Intervention, 25 VA. J. INT'L L. 62 1 ( 1985) , with John
N. Moore, The Secret War in Central American and the Future of World Order, 80 AM. J. INT'L L.
43 (1986).
29. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 4.
30. Exec. Order No. 12,333, supra note 4, § 1.8(e).
31. see house select comm. to investigate covert arms transactions with
Iran and Senate Select Comm. on Secret Military Assistance to Iran and the
nlcaraguan opposition, report of the congressional committees investigating
THE IRAN-CONTRA AFFAIR, S. REP. NO. 216, H.R. REP. NO. 433, at 3-1 1 (1987).
32. E.g., a covert operation in support of Afghanistan guerilla resistance to the 1979 Soviet
invasion remains a source of criticism. In 1997 the United States was still trying to recover
Stinger anti-aircraft missiles originally destined to oppose Soviet aircraft but today potentially in
the hands of terrorists.
33. 50 U.S.C. § 413b(3); see note 43 infra.
34. See, e.g., MARK RlEBLING, WEDGE: THE SECRET WAR BETWEEN THE FBI AND CIA 151
(1994).
35. 50 U.S.C. §413b(a).
14
M.E. Bowman
36. Id., §413b(b).
37. The dissemination of nonattributable information or communications designed to affect
the conditions under which governments act. The substance may be either true or false, or some
combination of each.
38. This might consist of advice, money, or physical assistance, with a purpose to encourage
desired activities or dissuade those considered hostile.
39. Secret military assistance, usually in the form of training.
40. E.g., security assistance and intelligence training for the leadership of the "right" faction.
41. Two respected authorities argue that the statute was intended to supersede the
definition found in Exec. Order No. 12,333. See W. MICHAEL REISMAN and JAMES BAKER,
REGULATING COVERT ACTION 123 (1992). The author respectfully disagrees with the breadth
of that statement. Legislative history indicates that the intent was to regulate by procedure only a
limited portion of the Order's concept of activities, not to displace legislatively its broad foreign
policy scope. Reisman and Baker criticize the legislative definition as under-inclusive and write
more approvingly of the definition in the Hughes-Ryan Amendment. Virtually any definition
will be subject to criticism as being either under or over-inclusive, but under-inclusion is
consistent with the limited scope of oversight that Congress then thought appropriate.
42. Covert action means an activity or activities of the United States Government to
influence political, economic, or military conditions abroad, where it is intended that the role of
the United States Government will not be apparent or acknowledged publicly, but does not
include:
(1) activities the primary purpose of which is to acquire intelligence, traditional
counterintelligence activities, traditional activities to improve or maintain the operational
security of United States Government programs, or administrative activities;
(2) traditional diplomatic or military activities or routine support to such activities;
(3) traditional law enforcement activities conducted by United States Government law
enforcement agencies or routine support to such activities; or
(4) activities to provide routine support to the overt activities (other than activities
described in paragraphs (1), (2) or (3) of other United States Government agencies abroad.
50U.S.C§413b(3).
43. S. REP. NO. 85, at 42 (1991), reprinted in 1991 U.S.C.C.A.N. 193, 236. Some view this
language to indicate that Congress meant to treat all Executive actions intended to remain
secret as covert action. This writer believes that view is grossly over-inclusive. Like the issue of
unintended consequences, this is a subject deserving of a stand-alone analysis.
44. An even more difficult question is whether any Executive action that is intended to
remain secret invokes the statute. Despite the statutory language and its legislative history, this is
an issue over which reasonable minds can differ and is, more properly, an issue for separate
analysis.
45. PRADOS, supra note 10, is a thoughtful study of paramilitary covert actions that, in large
measure, reflects this concern.
46. The Hughes-Ryan Amendment, for example, required the CIA to report all covert
actions to eight congressional committees, four in each house. While it is difficult to argue
against the propriety of Congress being in the "know," in practical terms this meant sixty
members, plus staff, all newly exposed to facts, the mere intimation of which can cause a failure
in foreign policy and, perhaps, the death of the actors.
47. One historian, writing of General Washington's military espionage apparatus,
concluded: "It was deemed good propaganda to impute clandestine methods only to the enemy,
15
Covert Action the U.S. Way
thus implying that Britain was unscrupulous and had to use underhanded tactics to succeed."
Rhodri Jeffreys-Jones, American Espionage: From Secret Service to CIA 9 (1977).
48. In Little v. Barreme, 2 Cranch 170 (1805), the Supreme Court limited the foreign policy
powers of the President because the Congress had chosen to speak. During a period of hostilities
with France, and acting on Presidential orders, the U.S. Navy seized a ship departing a French
port. Congress, however, had enacted legislation to halt the intercourse with France which
authorized seizure of ships sailing to a French port. Speaking for the Court, Chief Justice
Marshall opined that the President's orders would undoubtedly have been lawful had not
Congress legislated differently.
49. To illustrate, two covert actions usually cited as successes were Operations "Ajax" in
Iran (placing the Shah in power) and "Success" in Guatemala (displacement of President
Arbenz). Both were short-term gains, and neither materially affected the balance of power in the
Cold War; yet a failure in either might well have forced those nations into the Soviet camp. The
truth is that national interest suffers if a covert action fails, particularly so if it is the more visible
paramilitary action. While it is impossible to know the real history of all covert actions, covert
paramilitary actions do not have a gleaming record of success.
50. See e.g., Mitrovic, Non-Intervention in the Internal Affairs of States, in PRINCIPLES OF
INTERNATIONAL LAW CONCERNING FRIENDLY RELATIONS AND COOPERATION 219 (Milan
Sahoviced., 1972).
16
International Law and Naval Operations
James H. Doyle, Jr.
IN THE OVER TWO HUNDRED YEARS from American commerce raiding
in the Revolutionary War through two World Wars, the Korean and
Vietnam wars, and a host of crises along the way, to the Persian Gulf conflict,
peacekeeping, and peace enforcement, there has been a continuous evolution
in the international law that governs naval operations. Equally changed has
been the role of naval officers in applying oceans law and the rules of naval
warfare in carrying out the mission of the command. This paper explores that
evolution and the challenges that commanders and their operational lawyers
will face in the 21st century.
The Early Years and Global Wars
Naval operations have been governed by international law since the early
days of the Republic. Soon after the Continental Congress authorized fitting
out armed vessels to disrupt British trade and reinforcement, the Colonies
established Admiralty and Maritime courts to adjudicate prizes. 1 American
captains of warships and privateers were admonished to "respect the rights of
neutrality" and "not to commit any such Violation of the Laws of Nations." 2
The first Navy Regulations enjoined a commanding officer to protect and
defend his convoy in peace and war. 3 In the War of 1812, frigate captains
International Law and Naval Operations
employed the traditional ruse de guerre in boarding merchant ships to suppress
trade licensed by the enemy. 4 President Lincoln's blockade of Confederate
ports satisfied the criterion of effectiveness (ingress or egress dangerous) under
international law. 5 The 1870 Navy Regulations directed commanders in chief
to strictly observe the laws of neutrality, whether belligerent or neutral, and to
comply with the laws of blockade. 6
For most of the 19th century, sailor-diplomats, in distant waters and with no
means to consult with Washington, were practicing and shaping international
law. Commanders combined naval force with diplomacy in dealing with the
Barbary Powers, negotiating treaties with Algiers and Turkey, and facilitating
early trade with China. In one of the great historical events of that era,
Commodore Matthew Perry, acting alone, concluded a treaty in 1854 which
opened Japan to U.S. trade. This was followed by Commodore Robert W.
Shufeldt's 1882 treaty opening Korea. But with the advent of the telephone
cable and worldwide communications, a naval officer's wide latitude to
determine foreign policy declined, 8 but not necessarily his ability to affect war
and peace in crisis situations at sea.
Ashore at the Naval War College, then Captain Charles H. Stockton wrote
the Naval War Code of 1 900 pursuant to tasking by the Secretary of the Navy. 9
After a thorough critique by international lawyers, the code, like the Civil War
Lieber Code regulating land warfare, strongly influenced the codification of the
law of armed conflict in the Hague Conventions of 1907. Professor John
Bassett Moore instituted the International Law Studies ("Blue Book") series in
1901, 10 while Professor George Grafton Wilson from Brown University
lectured at the War College from 1900 to 1937 and edited over seven thousand
pages of "Blue Books," "every one of which was intended to provide the naval
officer at home and alone in foreign ports with precise answers to problems he
might face." 11 Thus, with the Hague Conventions, Geneva Protocol of 1925,
London Protocol of 1936, and the various naval treaties and conferences in the
1930s, the 20th century marked a new partnership of statesmen, naval officers,
and international lawyers working together to develop rules of conduct that
govern naval operations. This partnership has continued to this day in the
variety of conferences and conventions that followed World War II. These
included the Geneva Conventions of 1949 12 and their Protocols Additional; 13
the Territorial Sea and Contiguous Zone, High Seas, Fisheries, and
Continental Shelf Conventions of 1958; 14 the 1972 US/USSR Incidents at Sea
Agreement; 15 and the 1982 United Nations Convention on the Law of the
Sea. 16 Naval officers have been active participants in all stages of the
deliberations and negotiations.
18
James H. Doyle, Jr.
In the actual practice of international law at sea, the global nature of two
world wars with powerful belligerents as adversaries stressed the customary and
Hague laws of neutrality, particularly contraband, enemy character and
blockade, and the rules protecting merchant ships. 17 However, the
fundamental principles of a balance between necessity, proportionality and
humanity were reaffirmed at Nuremberg, 18 even as it was obvious that the
civilian population, and the wounded, sick, shipwrecked, and prisoners of war
needed additional formal protection.
The Cold War and Era of Detente
The post- World War II era began with the ratification of the United
Nations Charter, whose Articles 51 and 52 recognize the inherent right of
self-defense and the right to establish regional organizations to deal with the
maintenance of international peace and security. In peacetime operations at
sea, the U.S. Navy was guided by both the customary three-mile limit of the
territorial sea with the right of innocent passage, and the traditional high seas
freedoms that included routine navigation, fleet exercises, naval patrols, flight
operations, surveillance, intelligence gathering, and weapon firing, all with due
regard for the rights and safety of others. But peace was elusive and the Cold
War period from 1945 to 1990 saw at least ten armed conflicts at sea, albeit
localized, that involved an application of the laws of naval warfare regarding
blockade, quarantine, maritime exclusion zone, mining, visit and search,
convoy protection, and targeting merchant ships and neutrals. 19
The Navy recognized a need for formal guidance and issued The Law of
Naval Warfare (NWIP 10-2) in 1955, based exclusively on the Hague and
Geneva Conventions and the customary law of war. 20 The Navy also
recognized the need for a cadre of international law specialists within the
community of naval lawyers, which in 1968 became the Judge Advocate
General (JAG) Corps. International law, while continually evolving, was
becoming increasingly complex. No longer could the operational commander
cope with the myriad of issues involving overseas base agreements, foreign
claims, and treaty provisions, as well as the peacetime law of the sea and the
rules of naval warfare, without specialized legal advice. During the 1950s and
60s, lawyers from the International Law Division of Navy JAG worked closely
with the Politico-Military Branch of the Office of the Chief of Naval
Operations to resolve legal issues. Navy lawyers were key players on the
delegation to the 1958 Geneva Conventions, and the principal adviser on
19
International Law and Naval Operations
national security interests was a vice admiral who was a former Judge Advocate
General of the Navy.
Following the failure of the 1960 Conference on the Law of the Sea to reach
agreement on the breadth of the territorial sea and the contiguous fishing zone,
technology and the rising demand for ocean resources dramatically intensified
the race to use the world's oceans. 21 Navy lawyers were soon immersed in
preparations for another law of the sea conference with an ever-expanding
community of nations. Emerging and unsettled issues in coastal state
jurisdiction, fisheries management, economic zone control, high seas rights,
seabed exploitation, environmental protection, scientific research, and dispute
settlement had to be reconciled with U.S. security and economic interests. For
naval operations the critical challenges were to limit the breadth of the
territorial sea to no greater than twelve miles, ensure passage through
international straits and archipelagic waters, and maintain traditional high seas
freedoms, especially in a new exclusive economic zone. The mobility and
presence of naval forces deployed worldwide were, and still are, a cornerstone
of U.S. foreign policy — critical to reassuring allies and deterring potential
enemies, responding in crisis situations, and carrying out treaty obligations. 22
Navy lawyers participated in all phases of the lengthy negotiations and can
rightly claim success in satisfying national security imperatives. Even now, they
are in the forefront of efforts to ratify the 1982 Convention, since the deep
seabed provisions have been reformed and the U.S. has expressed an intention
to become a party. 23
Along with the law of the sea negotiations in this era of detente were
deliberations on the Protocols Additional to the 1949 Geneva Conventions,
SALT I, chemical warfare, nuclear testing, and incidents at sea with the Soviet
Union, all of which raised issues that affected naval operations and required legal
advice. For example, in the Incidents at Sea negotiations with the Soviet Union,
a critical issue was whether the U.S. should accede to the Soviet demand that a
fixed distance limit the approach of ships and aircraft. The Joint Staff convinced
the Office of the Secretary of Defense (OSD) and the State Department that
fixed distances would undermine the U.S. position on the freedom and mobility
of its naval forces on the high seas, be inconsistent with the U.S. position against
limiting warship access to the Indian Ocean under a "Zone of Peace" proposal,
interfere with essential intelligence gathering, and generate endless arguments
over violations of some arbitrary and meaningless fixed distance. 24 Similarly,
following the 1988 Black Sea "bumping" incident, it was important that the U.S.
and the Soviet Union hammer out an understanding affirming the customary
and conventional right of innocent passage. 25
20
James H. Doyle, Jr.
In the aftermath of the Vietnam War, the Department of Defense issued
instructions requiring not only training in the law of war, but also legal review
of operational plans, contingency plans, and rules of engagement to ensure
consistency with applicable domestic and international law, including the law
of armed conflict. 26 Additionally, new weapon systems and munitions in
development were to be examined for compliance with law of war obligations.
In 1979, the Joint Chiefs of Staff consolidated a set of worldwide peacetime
rules of engagement (ROE) for maritime forces. Operational planners and
military lawyers in all services convened to discuss law of war issues, and
courses in operational law were established at the Army and Air Force JAG
schools, and the Naval Justice School. These seminars and classes were
invaluable in clarifying misperceptions as to legal versus policy restrictions.
Navy and Marine Corps lawyers were beginning to be trained in oceans law and
the law of war. Those assigned to fleet, carrier group, and amphibious
commands, and fleet marine force elements, who had been primarily
concerned with the administration of military justice, were now expected to
render advice in operational law. The culture and requirements were changing
rapidly. In this regard, operational law for the Navy and Marine Corps
encompasses both the U.S. domestic legislation and public international law
that affects naval operations, with special emphasis on oceans law and the rules
of naval warfare. 27
The New World Order
Nineteen hundred eighty-six marked the beginning of a new dimension of
international law at the Naval War College that future historians may well
refer to as the "Grunawalt era." Captain Richard J. Qack) Grunawalt, JAGC, U.
S. Navy (Retired), assumed the prestigious Charles H. Stockton Chair of
International Law. Grunawalt, a Navy lawyer for twenty-six years, had vast
experience in international law, serving as Fleet Judge Advocate, U.S. Seventh
Fleet and the senior adviser to both the joint theater commander in the Pacific
and the Chief of Naval Operations. With this background and a vision for the
future, he instituted a number of initiatives that reinvigorated the
international law program at the War College and put the institution in the
forefront of the development, debate, and exposition of operational law.
Oi great significance, Professor Grunawalt wrote The Commander's
Handbook on the Law of Naval Operations (NWP 9), which was promulgated by
the Department of the Navy in 1987. 28 The Handbook replaced NWIP 10-2,
which, although amended several times, was obsolete. The author wisely chose
21
International Law and Naval Operations
to combine in one manual, "The Law of Peacetime Naval Operations," Part I,
and "The Law of Naval Warfare," Part II. As has been experienced during the
Cold War and is faced even more frequently today, there is no bright line
between peace and war. With ethnic conflicts, deep-seated religious
animosities, humanitarian tragedies, nations in disarray, and regional
aggressors, a crisis anywhere in the world can turn "peace" into war overnight. 29
A commander must be prepared to move easily from Part I to Part II of the
manual with the advice and counsel of his military lawyer. In addition, there
are areas in the law of naval warfare, like neutrality, that cannot be applied
without a thorough understanding of the legal divisions of the oceans and
airspace in Part I. Part I also covers the international status and navigation of
warships and military aircraft, the protection of persons and property at sea,
and the safeguarding of U. S. national interests at sea. While the ocean areas
and navigational rights are based primarily on the 1982 UN Law of the Sea
Convention, Part I also relies on domestic legislation, general international
law, and the UN Charter to provide guidance on matters such as asylum, drug
interdiction with the Coast Guard, and the right of self-defense. Part II, "The
Law of Naval Warfare," explains the principles and sources of the rules,
adherence to and enforcement of the law of armed conflict, neutrality, naval
targeting, conventional weapons, weapons of mass destruction (nuclear,
chemical, biological), noncombatants, and deception during war.
Significantly, both Parts I and II provide guidance on the rules of
engagement, with Article 51 the legal foundation for peacetime application
and the law of armed conflict the framework for wartime use. In 1981, in
airspace over international waters in the south central Mediterranean, two
F-14s from the Nimitz battle group exercised their right of unit self-defense
when they responded to an attack on them by two Libyan SU-22 fighters. 30 The
rules of engagement are flexible in the sense that they can be tailored for a
specific situation. For example, during the Iran-Iraq Tanker War of 1980-1988,
after the USS Stark was hit by Exocet missiles fired from an Iraqi Mirage F-l,
the belligerents were warned by Notices to Mariners and Airmen that U.S.
warships would fire if their aircraft approached U.S. ships in a manner
indicating hostile intent, unless they provided adequate notification of their
intentions. 31 But as the later USS Vincennes-lranian Airbus incident
demonstrated, the most carefully crafted ROE still require the judgment of the
operational commander on the scene. 32 Rules of engagement may be issued as
general guidance covering a range of contingencies, or they may be tailored for
a specific operation.
22
James H. Doyle, Jr.
Part II, "The Law of Naval Warfare," is based on various treaties,
conventions, and customary law, and includes the Additional Protocols to the
1949 Geneva Conventions where consistent with U.S. policy. Neutrality under
the UN Charter is discussed, as is the London Protocol of 1936 on the
protection of merchant ships. 33 Guidance on the latter considers the practice of
belligerents during and following World War II. For the benefit of Navy and
Marine Corps legal officers responsible for advising commanders, there is an
encyclopedic Annotated Supplement to The Commander s Handbook on the Law
of Naval Operations, prepared by the Naval War College with the assistance of
operational law experts from various commands and organizations. It contains
a section-by-section analysis of the Handbook with a full discussion of the
concepts and sources of the rules. Volume 64 of the "Blue Book" series
contains essays by distinguished and respected authorities in international law
commenting on the manual and addressing the more controversial and
significant areas of operational law. 34
Professor Grunawalt explained that the Handbook was to be used by
operational commanders and staff at all levels of command; that it constituted
general legal guidance; and that it would enable the commander and staff to
better understand the legal foundations for orders and their responsibilities
under domestic and international law in the execution of the mission. The
Handbook serves as an authoritative demonstration of how the U.S. interprets
and applies oceans law and the rules of naval warfare, and, hopefully, will
influence the behavior of other nations. Military manuals and handbooks are
important both in disseminating operational rules and developing
international law. 35 The Handbook has been distributed widely to foreign
governments and their naval leadership. In the short time since publication, it
has guided the development of naval manuals in a number of allied nations and
coalition partners. Additionally, international lawyers and naval experts, who
from 1988 to 1994 prepared the San Remo Manual on International Law
Applicable to Armed Conflicts at Sea, found the Handbook to be a major source in
formulating a progressive statement of the law of naval warfare. 36
For the future, the Joint Law of War Manual is in preparation by a task group
of Army, Navy, Air Force, Marine Corps, Joint Staff, and Department of
Defense operational law experts. 37 The sections on the war on land and the war
in the air and space will replace out-of-date Army and Air Force manuals. The
section on war at sea will be an overview with the Handbook remaining intact to
provide more detailed guidance. Joint Chiefs of Staff Publication 3-0, Doctrine
for Joint Operations, states that "As with all actions of the joint force, targeting
and attack functions are accomplished in accordance with international law,
23
International Law and Naval Operations
the law of war, and international agreements and conventions, as well as rules
of engagement approved by the National Command Authorities for the
particular operation. Military commanders, planners, and legal experts must
consider the desired end state and political aims when making targeting
decisions." 38 As the military services train, plan, and conduct joint and
multinational operations in accordance with the Chairman, Joint Chiefs of
Staff, Joint Vision 2010, it is entirely necessary and appropriate that there be a
joint legal manual to guide joint and multinational commanders.
Reorganization of the Naval War College in 1972 had terminated the
long-standing International Law Week in which international law scholars met
with students to discuss subjects in the field related to naval operations.
Although international law was integrated on a piecemeal basis into various
naval warfare courses, the study of international law was left without a place in
the core curricula of the resident courses. This fragmentation and de-emphasis
of international law also reduced the effectiveness of the Stockton Chair, with
the result that there was no international law support within the Center for
Naval Warfare Studies, which provides the College's strategic research and
war-gaming focus. In early 1988, at a meeting with the President and the Dean
of the Center for Naval Warfare Studies, Professor Grunawalt proposed that an
oceans law and policy research activity be established in the Center to support
the War College, the Judge Advocate General, and the entire Navy in the
study, instruction, war gaming, and research in international and operational
law. 39 Following up immediately in a letter to the Chief of Naval Operations,
endorsing the initiative, the President noted that "the range of international
law issues currently at play in the Persian Gulf encompasses such diverse yet
critically important areas of the law of the sea and the law of armed conflict as
the high seas freedoms of navigation and overflight, innocent passage of the
territorial sea, transit passage of straits, neutral and belligerent rights, naval
targeting, mine and counter-mine warfare, the inherent right of self-defense,
and flag nation authority and responsibility over merchant shipping. Each of
these oceans law and policy concepts impact upon and are reflected in the rules
of engagement provided to the operating forces by the National Command
Authorities. While the situation in the Persian Gulf provides sharp and
immediate focus to the application of international law in crisis management,
the role of oceans law and policy in routine peacetime operations, in strategic
and contingency planning, and in the execution of the Freedom of Navigation
Program, is no less important." 40 Thus, the Oceans Law and Policy Department
was born, and Jack Grunawalt accepted the appointment as the first Director
in July 1989.
24
James H. Doyle, Jr.
With eventual staffing of Navy, Marine Corps, Army, Air Force, and Coast
Guard officers experienced in operational law, the Oceans Law and Policy
Department in ten short years has revolutionized the role of the Naval War
College in operational law. At the tenth annual meeting of the Operational
Law Workshop and Advisory Board, the many activities of the Department
were reviewed. The instruction programs on the national level include courses
in oceans law, the law of armed conflict, and rules of engagement. They are
taught at the War College, Surface Warfare Officers School, Naval Justice
School, Submarine School, Naval Strike and Air Warfare Center, Joint
Targeting School, Coast Guard Prospective Commanding Officers and
Executive Officers School, Naval and Air Force Academies, Submarine Group
10, and the Military Sealift Command. Both line officers and lawyers receive
instruction. Internationally, the courses are taught in a number of countries by
Grunawalt and his staff — Argentina, Chile, Colombia, Ecuador, Germany,
Japan, Mexico, Panama, Peru, South Korea, Uruguay, and Venezuela.
Operational law instruction on a seminar basis is also- provided to operational
commanders and staffs at the fleet level in the Navy, Marine Corps, and Coast
Guard. The sessions with the operational commanders and planners are critical
in fostering understanding, respect, and a spirit of teamwork between the
commanders and their military lawyers in dealing with the complex and
evolving challenges in operational law.
A typical three -day course in operational law covers general principles of
international law, the U.S. national security organization, law of the sea,
freedom of navigation operations, protection of persons and property at sea,
maritime law enforcement, law of armed conflict, weapons and targeting,
neutrality, blockade, maritime interception operations, and rules of
engagement. The ROE portion includes lessons learned from operations in
Libya, Beirut, Grenada, Panama, Somalia, Haiti, Bosnia, the USS Stark and
Vincennes incidents, Desert Shield and Desert Storm, and the "friendly fire"
shootdown of the Army Black Hawk helicopter in northern Iraq. In addition,
UN military operations other than war and noncombatant evacuations are
analyzed.
In conjunction with these activities, the Department updates the
Commander s Handbook and the Annotated Supplement, publishes the "Blue
Book" series, coordinates the activities of the Stockton Chair, periodically
holds conferences in operational law, and conducts research into such diverse
areas as the legal regime for the Straits of Hormuz, Greek-Turkish
confidence-building, intervention, and Bosnian Implementation Force (IFOR)
operations.
25
International Law and Naval Operations
With these new initiatives and programs, the Naval War College has
become the focal point and corporate memory for matters of oceans law and
policy affecting operations at sea by U.S. and allied navies. With operational
law firmly established, the War College has the capability to conduct
long-range planning in the law of the sea and naval warfare, detached from the
day-to-day legal issues that consume the time and resources of the various
agencies in Washington and the fleet staffs. The consolidation of the Navy's
Doctrine Command, Maritime Battle Center, and Concepts Development
Group and Strategic Studies Group with the Naval War College will greatly
facilitate the integration of oceans law and policy with command and
operational doctrine. Integrating doctrine with long-range thinking, teaching,
war gaming, research, and naval studies will be invaluable in sorting out Navy
requirements, priorities, and programs, as well as strategy and tactics.
Operational law should be a part of that process. With staffing and support
from all the services, constant interaction with the military lawyers in the battle
groups and expeditionary units, the fleet and theater commands, the Joint
Staff, and OSD, and the attendance at ocean law conferences convened by
operational commanders, the War College is a key player in the joint arena. In
this regard, the College's Operational Law Workshop and Advisory Board
(another Jack Grunawalt initiative) is important in the oversight of the Oceans
Law and Policy Department and provides a unique forum for an exchange oi
fresh ideas.
In reflecting on the history of international law at the Naval War College, it
can be said without exaggeration that Professor Jack Grunawalt's legacy as
Director, Oceans Law and Policy Department, Center for Naval Warfare
Studies, will equal or surpass the mark made by Professors Charles H. Stockton
and George Grafton Wilson in the early days of the institution.
In the actual practice of operational law during the Persian Gulf War, the
Department of Defense observed that training in the law of war was reflected in
U.S. operations. Furthermore, adherence to the law of war impeded neither
coalition planning nor execution. The willingness of commanders to seek legal
advice at every stage of operational planning ensured respect for the law of war
throughout Desert Shield and Desert Storm. There were difficult issues that
had to be dealt with at every echelon of command, e.g., targeting to avoid
collateral damage and injury to civilians, the use of civilians and hostages as
human shields, environmental terrorism, ruses and perfidy, treatment and
repatriation of prisoners of war, war crimes, the conduct of neutral nations, the
role of the International Committee of the Red Cross and human rights groups,
26
James H. Doyle, Jr.
and responding to disinformation. In a politically charged atmosphere,
commanders and their lawyers were under constant media scrutiny as they
planned and carried out joint operations. 41
Between April 1992 and November 1995, U.S. armed forces participated in
a wide range of air and naval operations in support of United Nations Security
Council Resolutions aimed at terminating the ethnic-based conflicts raging
within the former Yugoslavia. 42 By the time the fighting ended in late 1995, the
U.S. and its allies had flown more than 109,000 sorties, just slightly less than
the number flown by Coalition forces during the Persian Gulf War. Navy and
Marine Corps aircraft were involved in the following operations:
Provide Promise (2/93-1/96) — providing air cover for air delivery of relief
supplies;
Deny Flight (4/93-12/95) — enforcing the ban on military flights over Bosnia
and Herzegovina;
Sharp Guard (6/93-6/95) — enforcing the complete embargo on deliveries of
weapons and military equipment to Yugoslavia;
Deliberate Force (8/95-9/95) — conducting air strikes against the
Bosnian-Serb Army and providing air defense suppression, close air support,
combat air patrol, and search and rescue, supplemented by Tomahawk missiles
launched from a U.S. Navy Aegis cruiser.
These military operations in the other-than-war category (MOOTW)
illuminated complicated issues of law and policy that had to be dealt with by
commanders and their military lawyers in a political environment in which UN
and NATO participants held differing views regarding the future of Bosnia and
its neighbor States. Procedures for coordination and liaison at each level of the
command chain were required since both the UN and NATO had to consent
before military force could be applied. Detailed rules of engagement and other
operational constraints had to be formulated in order to avoid both casualties
within NATO and UN forces and unnecessary loss of life or damage to property
within Bosnia itself. U.S. commanders and staff had to take the lead in devising
the complex and sensitive terms of reference, mission statements, command
arrangements, rules of engagement, and target selection that are mandatory in
MOOTW coalition operations that involve a wide variety of aircraft types
from various nations. The Bosnian air operations were successful in that there
was an overall lack of significant collateral damage to life and property.
However, there were instances of an inability to deliver ordnance on specific
ground targets because of an immediate and serious threat to NATO forces,
UN peacekeeping forces, or to Bosnian civilians. Furthermore, NATO's ability
to suppress helicopter flights in the no-fly zone was only partially effective due
27
International Law and Naval Operations
to the political costs of mistakenly shooting down a helicopter with civilians
aboard or a UN helicopter. The tragic shoot-down of the Black Hawk
helicopter during this same time period illustrates the importance of effective
coordination, communications, identification, and deconfliction procedures,
in addition to detailed ROE.
In a counterpart to the air operations over Bosnia and pursuant to UN
Security Council Resolutions, NATO and Western European Union (WEU)
warships began maritime interception operations (MIO) in the Adriatic Sea to
monitor compliance with the embargo on goods in and out of Yugoslavia. 43
After several months of interrogations which determined that violations were
indeed occurring, the Security Council authorized action by boardings,
inspections, and diversions under chapters VII and VIII of the UN Charter.
Enforcement was extended to prohibit all commercial maritime traffic from
entering the territorial sea of Yugoslavia when it was discovered that
"contraband" ships were making an end run through the territorial sea to avoid
enforcement. NATO and WEU forces were then consolidated into one
operation called Sharp Guard. From 1992 to 1996, Sharp Guard surface ships
challenged nearly 75,000 merchant ships, boarded and inspected 5,951 at sea,
and diverted and inspected 1,480 in port. Maritime patrol aircraft flew 7,151
sorties in support. As a result of these efforts, no ships were reported to have
broken the embargo or sanctions during the almost four years that the
operations were in effect. 44
The critical issues to be sorted out in maritime interception operations are
command and control, rules of engagement, and communications. The
Adriatic MIO began in a parallel command structure with NATO and the WEU
each controlling their respective warships. This structure was similar to the
Persian Gulf MIO in that the U.S. and the UK each exercised control over their
own forces, with the added feature that Arab/Islamic nations utilized a lead
nation concept for controlling their ships. This trifurcated command
arrangement was developed on an ad hoc basis and required extensive
coordination. The Coalition Coordination, Communications, and Integration
Center (C3IC) was used to exchange intelligence and operational information,
and coordinate enforcement action. In the Adriatic, once Sharp Guard was in
effect, operational command of NATO and WEU ships was centralized under
the Commander in Chief, Allied Forces Southern Europe. This was a highly
effective and ideal structure with NATO ships well trained in NATO
procedures. However, future MIOs with coalition forces will probably have to
formulate their own ad hoc command and control structure.
28
James H. Doyle, Jr.
In rules of engagement, the Sharp Guard unified command used NATO
ROE, which greatly simplified the problem. However, there was a confusion
factor since French, U.S., and UK ships were in the Adriatic operating under
their respective national ROE and then would rotate into the MIO and change
to NATO ROE. But even under the ideal, single NATO ROE, commanders and
staff still had to sort out issues of interpretation such as what constitutes a
hostile act or hostile intent, and what kind of disabling fire is authorized.
Communications connectivity and interoperability have been continuing
challenges in multinational operations. In Sharp Guard, communications were
facilitated by common training, language, publications, similar equipment, and
NATO procedures. For future MIOs, a great deal of prior planning will be
necessary to resolve technical problems and insure that compatible
communication equipment is available.
Maritime interception operations have become an important method of
enforcing economic sanctions. Legally, they are in a category of their own, but
have features of blockade (probably pacific blockade), visit and search,
contraband, and quarantine. Whether the particular MIO is pursuant to a
Security Council resolution or justified by individual or collective self-defense,
notification of the terms, conditions, limitations, area affected, and
enforcement action is required. It is interesting to note that the enforcement
action often included diversion for inspection in port or just diversion, as well
as boarding and inspection at sea, rather than detention, capture, or
confiscation. The San Remo Manual provides for diversion as an alternative to
visit and search. 45
The Challenges Ahead
For the foreseeable future, U.S. naval forces will be deployed worldwide in
support of national interests. This was emphasized when the Nimitz Carrier
Battle Group was ordered into the Persian Gulf ahead of schedule in 1997 as a
warning to Iran and Iraq to stop incursions into the U.S. -enforced "no-fly" zone
in southern Iraq. 46 As the Chief of Naval Operations has stated, "Our global
presence insures freedom of navigation in international trade routes and
supports U.S. efforts to bring excessive maritime claims into compliance with
the law of the sea." 47 Volume 66 of the "Blue Book" series documents excessive
claims that affect the territorial sea, international straits, overflight,
archipelagic sea-lanes passage, and navigation in the exclusive economic
zone. 48 Many of the actions taken under the U.S. Freedom of Navigation
Program, including diplomatic efforts and peaceful assertions of the rights and
29
International Law and Naval Operations
freedoms of navigation and overflight recognized in international law, are
described. The volume also details how international agreements, as well as
U.S. domestic legislation on the protection of the marine environment and
marine resources, have the potential, in their application and enforcement, to
infringe on the exercise of traditional high seas freedoms of navigation and
overflight. Excessive maritime claims can also hamper military operations in
international waters and airspace to stem the flow of illegal drugs into the
United States. In addition to countering excessive maritime claims, the
challenges ahead affecting naval operations in "peacetime" include protecting
the sea routes of international trade, particularly straits, insuring access to
critical oil and gas resources, maintaining access to the high seas for
telecommunications, upholding the sovereign immunity of warships and other
public vessels and aircraft, continuing to participate in efforts to protect the
marine environment and enhance the management of fisheries, and modifying
naval operational practices to limit sources of pollution from warships.
Protection of the marine environment is a major issue of concern and cannot
be compartmentalized. For example, technical solutions and new equipment
are required to process waste from ships. Continued U.S. leadership in the
International Maritime Organization is essential.
In the area of naval warfare, there are factors that must be considered before
the commander and his lawyer can deal with the individual rules. Much of
modern international law has been a movement to limit state sovereignty.
There have been remarkable advances in human rights and the protection of
the environment as a result of the initiatives and efforts of non-governmental
organizations (NGOs), thus presaging an increasing role for NGOs in
international law. 49 Joint Vision 2010 points out that "future leaders at all levels
of command must understand the interrelationships among military power,
diplomacy, and economic pressure, as well as the role of the various
government agencies and branches, and non-governmental actors, in
achieving our security objectives." 50 In actions under chapter VII of the UN
Charter, effective participation will most likely be limited to the great powers,
i.e., States with a resource base and an internal political organization that
enable the leadership to clarify global interests and, if necessary, mobilize
sufficient domestic support to enable them to deploy an adequate military
force. 51 For the U.S., this will mean working through Presidential Decision
Directive 25 (PDD-25) to ascertain whether the two-tier criteria are met in
order to permit U.S. involvement in UN peacekeeping operations. 52 Also,
there are Congressional concerns about involving U.S. forces in UN operations,
expressed, e.g., in proposed legislation prohibiting U.S. forces from serving
30
James H. Doyle, Jr.
under foreign operational control and restricting the sharing of intelligence
information. 53
In what has been termed the third great revolution in history, developments
in computers and telecommunications have dramatically reduced the effects of
time and distance. The ability of television to broadcast instantaneous images
of international crises has created new challenges for diplomats, government
officials, and military commanders and their lawyers, and a demand for an
immediate policy and legal response. Enormous pressure is put on the military
commanders not only because their tactics and casualties are scrutinized
instantaneously, but also because media reports impact the morale of soldiers,
sailors, and airmen. 54
Military Operations Other than War are focused on deterring war and
promoting peace but, as recent experience indicates, often involve the use or
threat of force. In such cases, Joint Pub 3-0, Doctrine for Joint Operations,
directs that military force be applied prudently. "The actions of military
personnel and units are framed by the disciplined application of force,
including specific ROE. In operations other than war, ROE will often be more
restrictive, detailed, and sensitive to political concerns than in war. Moreover,
these rules may change frequently during operations. Restraints on weaponry,
tactics, and levels of violence characterize the environment." 55 In future
MOOTW, achieving a balance between the level of violence necessary to
accomplish the mission and the force essential to protect our own and friendly
forces will be a challenge. This balance was reached in Deny Flight and
Deliberate Force by limiting strikes to air defense sites and only expanding the
target base on a graduated basis when Serbian forces violated UN conditions.
To minimize collateral damage, precision-guided munitions comprised more
than 90 percent of the air-to-ground ordnance delivered by naval aircraft, in
contrast with less than 2 percent used during the Persian Gulf War. Restraints
on target selection will sometimes be decided at the political level with UN and
coalition participation. In Operation Earnest Will (reflagging and protecting
Kuwati tankers during the Iran-Iraq Tanker War), after the USS Samuel B.
Roberts hit an Iranian laid mine, the National Command Authority decided
that the appropriate and proportionate response was to attack Iranian oil
platforms, attacking Iranian ships only if they fired on U.S. ships. 56 More
recently, in the Bosnian operation under the Dayton Accords, the former
Implementation Force (IFOR) commander and his military lawyer had to take a
strong stand in the political negotiations to get rules of engagement with the
flexibility to use force commensurate with accomplishing the mission. 57 In the
area of individual and unit self-defense, a difficult issue will be to define in the
31
International Law and Naval Operations
ROE what constitutes a hostile act or intent in the light of new technology,
weapons, means of delivery, countermeasures, and tactics so that defensive action
can be taken in anticipation of an imminent attack in accordance with the
Commanders Handbook. 58
In future wars, the "goal is to win as quickly as possible and with as few
casualties as possible, achieving national objectives and concluding hostilities
on terms favorable to the United States and its multinational partners." 59
However, there will still be challenging issues to resolve involving targeting,
collateral damage, over- the -horizon weapons, protection of merchant ships,
medical transport, civilian aircraft, noncombatants, 60 the environment, and
self-defense, especially if the armed conflict is limited in scope and area. The
mingling of civilians with combatants will present problems in targeting to
avoid civilian casualties, particularly with the increasing use of "stand-off'
weapons to minimize exposure to casualties. 61 In the Iraqi Mirage attack on
USS Stark, the pilot followed standard Iraqi policy on target discrimination by
firing on the largest radar return believed to be in the Iranian war zone. Iraq
accepted responsibility for an erroneous attack. 62 In the regime of self-defense
during the Persian Gulf War, the former Commander of the Naval Forces had
to resolve convoy escort responsibilities among multinational ships,
particularly as to whether a convoy commander operating under national rules
of engagement could respond in self-defense to an attack on a foreign flag ship
in his convoy. 63 In this regard, it is important to remember that the rules of
engagement have to be clear and concise for implementation by commanders
and subordinates who may not have an operational lawyer or access to legal advice.
In the environmental arena, international outrage at the depredations visited
upon Kuwait and upon the waters of the Persian Gulf during the Gulf War
drew renewed attention to the ongoing debate among environmentalists,
scientists, lawyers, policy makers, and military officials as to whether
international law was adequate to protect our natural heritage. Volume 69 of
the "Blue Book" series documents the proceedings of the Symposium on the
Protection of the Environment during Armed Conflict held in 1995 at the
Naval War College and attended by national and international government
officials, legal scholars, scientists, and operational commanders. 64 It is obvious
that in future armed conflicts, the protection of the environment will be a
major issue. The Persian Gulf War, Bosnian peacekeeping, maritime
interception operations, and other events since emergence of the New World
Order demonstrate that there continue to be more than enough legal issues of
substance to focus the attention of the commander and his operational lawyer.
The Commander of U.S. Naval Forces Europe reported that in a twelve-
32
James H. Doyle, Jr.
month period during 1996' 1997, his naval forces participated in thirteen joint
and combined operations involving peacekeeping, peace enforcement,
noncombatant evacuations, and humanitarian missions. 65
The Commander and Operational Lawyer
The practice of operational law in the Navy and Marine Corps has matured
significantly since the days of line officers acting alone and a few international
law specialists at the Washington level grappling with issues of oceans law and
the rules of naval warfare. Now, there are trained and experienced operational
lawyers working in the Office of the Secretary of Defense, the Joint Chiefs of
Staff, the Offices of the Chief of Naval Operations, Commandant of the
Marine Corps, Judge Advocate General, the Naval War College, and most
importantly, on the staffs of joint, theater, fleet, battle groups, expeditionary
units, and other major operational commands. With satellite communications
and secure radios, these experts can rapidly communicate, share opinions,
receive guidance, make recommendations, get additional material, and do all
that is necessary to develop the best legal advice for the commander. Then,
using the Commanders Handbook, the Joint Chiefs of Staff peacetime rules of
engagement, the National Command Authorities wartime rules of
engagement, and policy directives, detailed guidance can be formulated and
promulgated to subordinate commanders and those tasked to perform the
mission. In this process, it is important that operational lawyers have the
latitude to exchange ideas, opinions, and tentative recommendations with
their counterparts up and down the chain of command, keeping their leaders
fully apprised of these contacts and sensitive to concerns about premature
disclosure of options that have not yet been approved either as
recommendations or directives. In searching for reasoned legal advice, "turf
considerations" and "not invented here" attitudes are unhelpful, to say the
least. The best operational lawyers are activists — speaking out, offering advice
in the planning process, and seeking ways to support the commander in
carrying out the mission under the law, but mindful that the commander is
ultimately accountable and must weigh political and policy considerations,
along with legal, in reaching a decision. In addition, a thorough understanding
of what the individual ship, aircraft, expeditionary unit, soldier, sailor, marine
and airman are trained to do is essential in this era of joint and combined
operations.
For their part, commanders and operational planners at all levels must have
an understanding of the fundamental principles of oceans law and the rules of
33
International Law and Naval Operations
naval warfare. They must be able to evaluate the advice of operational lawyers,
know what questions to ask, and when to listen or not listen. In the worst case,
a commander who defers entirely to his lawyer may jeopardize the mission.
Mutual trust and respect between the commander and his lawyer are essential
in getting the best legal advice. The tone the commander sets with the staff can
be critical as to the stature of the lawyer. The operational lawyer who is
expected to routinely and actively participate in the planning and decision
process can be counted on to render effective legal advice.
Coping with the complex and changing issues of oceans law and the rules of
naval warfare in the 21st century requires a team effort by the commander and
the operational lawyer. The former Commander, Implementation Force and
Allied Forces, Southern Europe, states that his military lawyer was a key player
and part of his daily planning and war council team, sitting right next to him,
actively participating in evaluating options, and offering advice in reaching
decisions. 66 In a similar vein, the former Commander Naval Forces, Central
Command, during the Persian Gulf war, observed that he had great rapport
with his lawyer, who was an active participant on the staff and was invaluable
in dealing with the legal and policy issues during the war. 67 At the National
Security Council level, the former Chairman, Joint Chiefs of Staff, observed
that his Navy lawyer was indispensable in sorting out the legal and policy issues
involved in the use of force and rules of engagement, and ensuring that the
Chairman's views on these issues were represented in interagency debates and
the decision-making process. 68
With that kind of teamwork, and mutual trust and respect, there is no doubt
that commanders and operational lawyers, in the Jack Grunawalt tradition, will
meet the challenges of the 21st century.
Notes
1. See Carl Ubbelohde, The Vice- Admiralty Courts and the American
Revolution (1960).
2. Letter from American Commissioners in France to Commanders of Armed American
Vessels (Nov. 21, 1777) in 10 DOCUMENTS OF THE AMERICAN REVOLUTION, 1777, at 1012-13
(Michael J. Crawford ed., 1996). See letter from American Commissioners in France to French
and Spanish Courts (Nov. 23, 1777), in id. at 1020-21, justifying the capture of a French ship,
allegedly carrying Spanish goods from London to Cadiz by an American privateer and explaining
the role of American prize courts in adjudicating prizes.
3. Naval Regulations issued by Command of the President, Jan. 25, 1802 (facsimile, U. S.
Naval Institute, 1970). Previously, on Nov. 28, 1775, the Continental Congress adopted a code
of naval regulations patterned after the 1749 British regulations governing His Majesty's ships,
vessels, and forces by sea. See L. H. Bolander, A History of Regulations in the U.S. Navy, 75 NAVAL
INST. PROC. 1354(1947).
34
James H. Doyle, Jr.
4. See Michael J. Crawford, The Navy's Campaign against the Licensed Trade in the War of
1812, 46 AM. NEPTUNE 165 (1986).
5. See James m. Mcpherson, Battle Cry of Freedom: The Civil War Era 385
(1988).
6. U.S. NAVY REGULATIONS, 1870, art. 94. See also current U. S. NAVY REGULATIONS,
1990, art. 0705 ("At all times, commanders shall observe and require their commands to
observe, the principles of international law. Where necessary to fulfill this responsibility, a
departure from other provisions of Navy Regulations is authorized.")
7. See Charles O. Paullin, Diplomatic Negotiations of American Naval
Officers 1778-1883 (1912).
8. see david f. long, gold braid and foreign relations, diplomatic
Activities of u. S. naval Officers, 1798-1883 (1988).
9. The United States Naval War Code of 1900, reprinted and critiqued in INTERNATIONAL
LAW DISCUSSIONS, 1903 (Naval War College, 1903). Captain Stockton collaborated with
Captain Asa Walker in the preparation of the Naval War Code of 1900.
10. See JOHN B. HATTENDORF ET AL., SAILORS AND SCHOLARS: THE CENTENNIAL
HISTORY OF THE U.S. NAVAL WAR COLLEGE (1984).
11. Id. at 56.
12. Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick
in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114; Geneva Convention (II) for the
Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces
at Sea, Aug. 12, 1949, 6 U.S.T. 3217; Geneva Convention (III) relative to the Treatment of
Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316; Geneva Convention (IV) relative to the
Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516.
13. Protocol Additional (I) to the Geneva Conventions of Aug. 12, 1949, and relating to the
Protection of Victims of International Armed Conflicts, June 8, 1977, and Protocol Additional
(II) to the Geneva Conventions of Aug. 12, 1949, and relating to the Protection of Victims of
Non-International Armed Conflicts, June 8, 1977, reprinted in DOCUMENTS ON THE LAWS OF
WAR 389, 449 (Adam Roberts and Richard Guelff eds., 1982).
14. Convention on the Territorial Sea and Contiguous Zone, Apr. 29, 1958, 15 U.S.T. 1606;
Convention on the High Seas, Apr. 29, 1958, 13 U.S.T. 2312; Convention on Fisheries and
Conservation of the Living Resources of the High Seas, Apr. 29, 1958, 17 U.S.T. 138;
Convention on the Continental Shelf, Apr. 29, 1958, 17 U.S.T. 471.
15. Agreement on the Prevention of Incidents On and Over the Sea, May 25, 1972,
U.S.-U.S.S.R., 26 U.S.T. 1168.
16. Convention of the Law of the Sea opened for signature Dec. 10, 1982, art. 308, U. N. Doc.
A/Conf. 62/122, reprinted in 21 I.L.M. 1261-1354.
17. See W. T. MALLISON, JR., STUDIES IN THE LAW OF NAVAL WARFARE: SUBMARINES IN
GENERAL AND LIMITED WAR (58 International Law Studies, 1966) ; ROBERT W. TUCKER, THE
LAW OF WAR AND NEUTRALITY AT SEA (50 International Law Studies, 1955).
18. The Hostage Case (United States v. List et al.), 11 T.W.C. 1253-54 (1950); See MYRES
S. MCDOUGAL AND FLORENTINO P. FELICIANO, LAW AND MINIMUM PUBLIC ORDER 525
(1962).
19. See George K. Walker, State Practice Following World War 11, 1 945-1 990, in THE LAW OF
NAVAL WARFARE: TARGETING ENEMY MERCHANT SHIPPING 121 (65 International Law
Studies, Richard J. Grunawalt ed., 1993).
20. THE LAW OF NAVAL WARFARE, NWIP 10-2, reprinted in TUCKER, supra note 17, at
357-422.
35
International Law and Naval Operations
21. See ANN L. HOLLICK, U. S. FOREIGN POLICY AND THE LAW OF THE SEA (1981).
22 . See DEPT OF DEFENSE, NATIONAL SECURITY AND THE CONVENTION ON THE LAW OF
THE SEA (2d ed. 1996).
23. Message from U.S. President transmitting UN Convention on the Law of the Sea and
Agreement Relating to the Implementation of Part XI, S. TREATY DOC. NO. 103-39, 103d
Cong., 2d Sess. (1994).
24. See U.S.-U.S.S.R. Agreement, supra note 15. See also David F. Winkler, When Russia
Invaded Disneyland, NAVAL INST. PROC, May, 1997, at 77 (overview of Incidents at Sea
negotiations, Nov. 1970-May 1972).
25. Joint Statement by the United States and the Soviet Union, with Uniform Interpretation
of the Rules of International Law Governing Innocent Passage, Sep. 23, 1989, 28 I.L.M. 1444-47
(1989).
26. See W. Hays Parks, The Gulf War: A Practitioner's View, 10 DICK. J. INT'L. L. 393 (1992) ;
J. Ashley Roach, Rules of Engagement, NAVAL WAR C. REV, Jan.-Feb. 1983, at 46.
27. See Parks, supra note 26, on the roots and evolution of operational law following the
watershed My Lai massacre during the Vietnam War.
28. Revised in 1989 as NWP 9A, and further revised and promulgated in 1995 as NWP
M4M/FMFM M0/COMDTPUB P5800.7. The 1995 edition expands on the treatment of
neutrality, targeting, and weapons; addresses land mines for the first time; and provides a new
section on maritime law enforcement and land warfare.
29. General John M. Shalikashvili, Chairman, Joint Chiefs of Staff, Success Can Breed
Forgetfulness, WASH. POST, Sep. 28, 1997, at C-4.
30. See Roach, supra note 26, for a discussion of the peacetime and wartime rules of
engagement and the exercise of the right of self-defense in the incident. See also Guy R. Phillips,
Rules of Engagement: A Primer, THE ARMY LAWYER, July 1993, at 4.
31. See Walker, supra note 19, at 162.
32. The Chairman, Joint Chiefs of Staff, after thorough investigation, found that the
commanding officer obeyed the rules of engagement in exercising the right of self-defense. In
personally briefing Middle East Force major commanders during Earnest Will (reflagging and
protecting Kuwaiti tankers), Admiral Crowe said, "If the rules of engagement are going to tilt in
any direction, I want them to tilt toward saving American lives." ADMIRAL WILLIAM J. CROWE,
JR., THE LINE OF FIRE 208 (1993).
33. The London Naval Treaty IV, 46 Stat. 2858, 2881-2 (1931), contains the identical rules
as in the Protocol of 1936.
34. THE LAW OF NAVAL OPERATIONS (64 International Law Studies, Horace B.
Robertson, Jr. ed., 1991).
35. See W. Michael Reisman & William K. Leitzau, Moving International Law from Theory to
Practice: the Role of Military Manuals in Effectuating the Law of Armed Conflict, in id. at 1.
36. San Remo Manual on International Law Applicable to Armed Conflicts
AT SEA (Louise Doswald-Beck ed., 1995) contains sections on general principles, regions of
operations, basic rules and target discrimination, methods and means of warfare at sea, measures
short of attack, interception, visit, search, diversion, and capture, and protected persons,
medical transports, and medical aircraft. Innovations in the Manual include the effect of UN
Security Council Resolutions, clarifying the concept of military objective, discussing the rules
applicable to zones, elaborating on military operations in various sea areas, and introducing new
rules regarding aircraft operations in armed conflict and in the "gray" area between peace and
war. The second part of the Manual contains an explanation of each paragraph (rule). These
explanations were authored by Professor Salah El-Din Amer, Louise Doswald-Beck, Vice
36
James H. Doyle, Jr.
Admiral James H. Doyle, Jr., Commander William Fenrick, Christopher Greenwood, Professor
Wolff Heintschel von Heinegg, Professor (Rear Admiral) Horace B. Robertson, Jr., and Gert-Jan
F. Van Hegelsom.
37. Memorandum from Hays Parks, Special Assistant for Law of War Matters, Department
of the Army, for the Tenth Annual Operational Law Symposium and Advisory Board, Naval
War College (Feb. 27, 1997) (on file with author).
38. Doctrine for Joint Operations, Joint Pub 3-0, III— 25 (1995).
39. Memorandum from Richard J. Grunawalt, Charles H. Stockton Professor of
International Law, for the Record of the International Law Meeting of 10 Feb. 1988 (Feb. 25,
1988) (on file with author).
40. Letter from Rear Admiral Ronald J. Kurth, USN, President, Naval War College, to the
Chief of Naval Operations (Feb. 11, 1988) (on file with author) .
41. See U.S. Department of Defense Report to Congress on the Conduct of the Persian Gulf
War— Appendix on the Role of the Law of War, Apr. 10, 1992, 31 1.L.M. 612 (1992). See also
Steven Keeva, Lawyers in the War Room, A.B.A. J., Dec. 1991, at 52, and Parks, supra note 26.
42. See Dean Simmons et al., Air Operations over Bosnia, NAVAL INST. PROC, May 1997, at
58, for an assessment of the operational lessons learned.
43. See Richard Zeigler, Ubi Sumus? Quo Vadimus? Charting the Course of Maritime
Interception Operations, 43 NAVAL L. REV. 1 (1996), for a comprehensive analysis of the
background, legal justification, conduct of operations, and recommendations for the future
regarding the maritime interception operations in the Persian Gulf and Red Sea, in the Adriatic
Sea, and in the Caribbean Sea off Haiti. See also LOIS E. FIELDING, MARITIME INTERCEPTION
AND U. N. SANCTIONS: RESOLVING ISSUES IN THE PERSIAN GULF WAR, THE CONFLICT IN
THE FORMER YUGOSLAVIA, AND THE HAITI CRISIS (1997).
44. Interview with Admiral Thomas J. Lopez, USN, Commander in Chief, Allied Forces,
Southern Europe, and Commander in Chief, U. S. Naval Forces Europe, in 13 SURFACE SlTREP
1-5 (Surface Navy Assoc, Aug.-Sep., 1997).
45. SAN REMO MANUAL, supra note 36 at 196.
46. U. S. Dispatches Carrier Group to Persian Gulf, WASH. POST, Oct. 4, 1997, at A8.
47. Admiral Jay L. Johnson, USN, Chief of Naval Operations, Operational Primacy, 22
Surface Warfare 3, 5 (May-June 1997).
48. J. Ashley Roach & Robert w. Smith, Excessive maritime Claims (66
International Law Studies, 1994).
49. See W. Michael Reisman, Redesigning the United Nations, 1 SINGAPORE J. INT'L. &COMP.
L. 1 (1997).
50. Chairman of the Joint Chiefs of Staff, Joint Vision 2010, at l, 28 (1996) .
51. See Reisman, supra note 49.
52. See Col. James P. Terry, The Criteria for Intervention: An Evaluation of U. S. Military Policy
in U. N. Operations, 31 TEX. INT'L. L.J. 101 (1996).
53. See George K. Walker, United States National Security Law and United Nations
Peacekeeping or Peacemaking Operations, 29 WAKE FOREST L. REV. 435 (1994); Myron H.
Nordquist, What Color Helmet?: Reforming Security Council Peacekeeping Mandates, Newport
Papers No. 12 (Center for Naval Warfare Studies, Aug. 1997).
54. See Diplomacy and Conflict Resolution in the Information Age, 3 PEACE WATCH Q une
1997).
55. Doctrine for Joint Operations, supra note 38, at V-3.
56. See Crowe, supra note 32, at 187-211.
37
International Law and Naval Operations
57. Conversation with Admiral Leighton Smith, USN (Ret.), former Commander
International Force (IFOR) and Allied Forces, Southern Europe (Oct. 8, 1997).
58. NWP 1-14M, supra note 28, at 4.3.2.1
59. Doctrine for Joint Operations, supra note 38, at 1-2.
60. See Louise Doswald-Beck, Vessels, Aircraft and Persons Entitled to Protection During
Armed Conflict at Sea, 1994 BRIT. Y.B. INT'L L. 211, in which a Senior Legal Adviser,
International Committee of the Red Cross, analyzes the state of the law and makes
recommendations for improvement.
61. See W. Michael Reisman, The Lessons ofQana, 22 YALE J. INT'L L. 381 (1997) (analysis
of Israeli artillery fire on a UN compound containing civilians and the right of self-defense). See
also Horace B. Robertson, Jr., Modem Technology and the Law of Armed Conflict at Sea, in THE
LAW OF NAVAL OPERATIONS, supra note 34, at 362-83, for a selective review of some of the
new technology weapon systems, e.g., Tomahawk and Harpoon cruise missiles, Captor mines,
directed energy devices, and depleted uranium ammunition, that are not unlawful per se, but can
be employed in such a way as to make their use unlawful.
62. See 26 I.L.M. 1427-28 (1987).
63. Conversation with Admiral Stanley Arthur, USN (Ret.), former Commander, U.S.
Central Command, Commander Seventh Fleet, and Vice Chief of Naval Operations (Oct. 9,
1997).
64. See PROTECTION OF THE ENVIRONMENT DURING ARMED CONFLICT (69 International
Law Studies, Richard Grunawalt et al. eds., 1996).
65. Lopez, supra note 44.
66. Smith, supra note 57.
67. Arthur, supra note 63.
68. Conversation with Admiral William J. Crowe, USN (Ret.), former Chairman, Joint
Chiefs of Staff, Commander in Chief Pacific Forces, and Commander Allied Forces, Southern
Europe (Oct. 18, 1997).
38
The Law of War
in
Historical Perspective
Leslie C. Green
I FIRST GOT TO KNOW JACK GRUNAWALT when I participated in some
of the symposia he organized at the Naval War College. I soon realised that
he was a great organizer, full of enthusiasm, and possessed of a warm
personality. In my two years as Stockton Professor of International Law at the
College, I have come to value him as a colleague and friend — and almost as the
father of a small family of fellow workers.
As a former British Army officer with a somewhat restricted knowledge of
maritime law, I had some fears associated with being in an Oceans Law and
Policy Department. But Jack made me welcome and integrated me into his
team. It did not take me long to realise that here was a man with catholic
interests willing to listen to another's views, even though they might be radical
and perhaps even "revolutionary." Discussing one's views with him would
often result in a modification of one's radicalism, and certainly a clarification of
doubt. It soon became clear that Jack's views and interests were wide in the
extreme, and he was obviously prepared to share them.
Having heard Jack lecture and seen his rapport with a class of officers from a
variety of commands and countries, I soon recognised that he is a born teacher.
The Law of War
Jack is also very modest. Soon after I joined the College, he told me that he did
not consider himself a true professor since he had never held an academic
appointment. I reminded him that he held a professorial appointment at a
recognized and highly respected institute of specialized and higher learning and
that having watched him in action, I know that he is more than adequately
entitled to be addressed as Professor.
It is with great delight that I find myself among those of his amid
contributing to this Liber Amicorum in honour of Jack Grunawalt.
It has often been claimed that modern international law is Eurocentric in
character. This somewhat chauvinistic attitude is frequently based on
comments in the works of the "fathers" of international law, many of whom
were Christian monks. 1 It is a view strengthened by pointing out that " [t] he era
of the independent territorial State began in earnest with the Treaty of
Westphalia in 1648, which ended the Thirty Years' War and the political
hegemony asserted by the Roman Catholic Church." 2 Such an attitude,
however, tends to minimize the significance of the system that prevailed in
ancient and medieval times. From earliest times it had been recognized that
some restraints were necessary during armed conflict. Thus, we find numerous
references in the Old Testament wherein God imposes limitations on the
warlike activities of the Israelites. It is true that the Israelites were frequently
enjoined to slaughter all the inhabitants of the cities they captured, 3 but this
was only when the war was waged at the direct instruction of God and normally
against heathens who rejected Him; to show mercy to the enemy would
constitute a sin against the Lord. 4 The Prophets tell us that in other wars the
victorious Israelites made the inhabitants of conquered territories slaves unless
they paid tribute. 5 If peace was not accepted upon defeat, the males were to be
slain, while women and children were to be spared, but made slaves. The rabbis
modified this so that their status became that of servants rather than slaves.
Prisoners of war were to be treated humanely and not slain, as Elisha
informed his king when asked if he might kill them. 6 In the days of the kingdom,
this was the common practice, for "if thine enemy be hungry, give him bread to
eat; and if he be thirsty, give him water to drink." 7 Not only were the innocent
to be protected, but precautions were also to be taken not to harm the local
fauna and flora, subject to the needs of military necessity. Thus, soldiers were
told not to destroy trees or fruit, other than that which was required for food or
the building of defenses. 8 Josephus 9 interpreted this to mean that the land was
not to be set on fire nor beasts of burden slaughtered. 10 In fact, commenting on
40
Leslie C. Green
Jewish behavior during conflict in biblical times, one commentator has
remarked:
The rabbis 11 softened the impact of much of the old law through
reinterpretation or imaginative explanation. Due to this it seems that the
Israelites were indeed a "merciful" people when compared with their neighbours,
such as the Assyrians. Although, as in any case, exceptions and violations to
regulations occurred, on the whole, the Israelite warriors conducted themselves
in a disciplined, restricted manner in accordance with rules and regulations
derived from divine inspiration. 12
It must be borne in mind, however, that, for the main part, the penalty for
disregarding the imprecations concerning conduct in combat were punishable
only by religious, that is to say divine, sanction.
The Israelites were not the only ancient people to consider it necessary to
impose some measure of control on their warlike activities. Sun Tzu
maintained that in war one should only attack the enemy armies, for "the worst
policy is to attack cities. Attack cities only when there is no alternative." 13 As
early as the seventeenth century B.C., the Chinese, when resorting to war,
limited their activities by a conscious application of principles of chivalry. 14
This may be seen in the refusal of the Duke of Sung's minister of war to attack
an unready enemy, while it was "deemed unchivalrous among Chinese chariot
aristocrats [to take] advantage of a fleeing enemy who was having trouble with
his chariot (he might even be assisted), [to] injure a ruler, [or to] attack an
enemy state when it was mourning a ruler or was divided by internal troubles."
The sacred writings of ancient India equally sought to introduce some
measure of humanitarianism. The Mahabharata} 5 states that "a king should
never do such an injury to his foe as would rankle the latter's heart, no sleeping
enemy should be attacked, and with death our enmity is terminated." 16 The
Laws of Manu, promulgated at approximately the same period, postulate that:
when the king fights his foes in battle, let him not strike with weapons concealed,
nor with barbed, poisoned, or the points of which are blazed with fire. . . . These
are the weapons of the wicked. 17
Moreover, it was generally recognized that proportionality between the
combatants was a requirement, so that elephants should be used only against
elephants, in the same way as foot soldiers would fight against foot soldiers. 18
Similarly, the Ramayana 19 condemned weapons which could "destroy the entire
race of the enemy, including those which could not bear arms . . . because such
41
The Law of War
destruction en masse was forbidden by the ancient laws of war, even though
[the enemy] was fighting an unjust war with an unrighteous objective." 20 The
Mahabharata, too, forbade the use of "hyperdestructive" weapons, since these
were "not even moral, let alone in conformity with religion or the recognized
rules of warfare." 21
In ancient Greece, among the city States:
[T]emples and priests and embassies were considered inviolable. . . . Mercy . . .
was shown to helpless captives. Prisoners were ransomed and exchanged.
Safe-conducts were granted and respected. Truces and armistices were
established and, for the most part, faithfully observed. . . . Burial of the dead was
permitted; and graves were unmolested. It was considered wrong and impious to
cut off the enemy's water supply, or to make use of poisoned weapons. 22
Treacherous stratagems of every description were condemned as being contrary
to civilized warfare. 23
In so far as Rome was concerned, practices:
[V] aried according as their wars were commenced to exact vengeance for gross
violations of international law, or for deliberate acts o{ treachery. Their warlike
usages varied also according as their adversaries were regular enemies ... or
uncivilized barbarians and bands of pirates and marauders. . . . [T]he belligerent
operations of Rome, from the point of view of introducing various mitigations in
the field, and adopting a milder policy after victory, are distinctly of a progressive
character. They were more regular and disciplined than those of any other
ancient nation. . . . The ius belli imposed restrictions on barbarism, and
condemned all acts of treachery. . . . [Livy tells us] there were laws of war as well
as peace, and the Romans had learnt to put them into practice not less justly than
bravely. . . . The Romans [says Cicero 24 ] refuse to countenance a criminal
attempt made on the life of even a foreign aggressor. 25
The rules of war in both Greece and Rome were, indeed:
[Applicable only to civilized sovereign States, properly organized, and enjoying
a regular constitution; and not to conglomerations of individuals living together
in an irregular and precarious association. Rome did not regard as being within
the comity of nations such fortuitous gatherings of people, but only those who
were organized on a civilized basis, and governed with a view to the general good,
by a properly constructed system of law. . . . Hence barbarians, savage tribes,
bands of robbers and pirates, and the like were debarred from the benefits and
relaxations established by international law and custom. . . . [A]s to the general
practice of war in Hellas, we find remarkable oscillations of warlike policy. Brutal
42
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treatment and noble generous conduct are manifested at the same epoch, in the
same war, and apparently under similar circumstances. At times we hear of
proceedings which testify to the intellectual and artistic temperament of the
Greeks; at other times, we read narratives which emphasize the fundamental
cruelty and disregard of human claims prevalent among the ancient races when
at war with each other. In Homer . . . hostilities for the most part assumed the
form of indiscriminate brigandage, and were but rarely conducted with a view to
achieving regular conquests, and extending the territory of the victorious
community. Extermination rather than subjection of the enemy was the usual
practice. . . . Sometimes prisoners were sacrificed to the gods, corpses mutilated,
and mercy refused to children, and to the old and sickly. On the other hand, acts
of mercy and nobility were frequent. . . . The adoption of certain, cowardly,
inhuman practices . . . was condemned. ... In reference to the conduct of war in
Greece, it is important to remember that it was between small States, whose
subjects were to an extraordinary degree animated by patriotism and devotion to
their mother-country, that each individual was much more affected by hostilities
than are the cities of the large modern States, that every individual was a
soldier-politician who saw his home, his life, his family, his gods at stake, and,
finally, that he regarded each and every subject of the opposing State as his
personal adversary. 26
It has been pointed out that the situation in ancient Greece appears to have
changed somewhat after Homer's time and that by the fifth century B.C., both
Euripides 27 and Thucydides 28 were able to write of the "common customs
(koina nomima) of the Hellenes," which, in regard to the law of war, may be
summarized as follows:
1 . The state of war should be officially declared before commencing
hostilities against an appropriate foe; sworn treaties and alliances should be
regarded as binding.
2. Hostilities are sometimes inappropriate; sacred truces, especially
those declared for the celebration of the Olympic games, should be observed.
3. Hostilities against certain persons and in certain places are
inappropriate; the inviolability of sacred places and persons under protection of
the gods, especially heralds and suppliants, should be respected.
4. Erecting a battlefield trophy indicates victory; such trophies
should be respected.
5. After a battle it is right to return enemy dead when asked; to
request the return of one's dead is tantamount to admitting defeat.
6. A battle is properly prefaced by a ritual challenge and acceptance
of the challenge.
43
The Law of War
7. Prisoners of war should be offered for ransom rather than being
summarily executed or mutilated.
8. Punishment of surrendered opponents should be restrained.
9. War is an affair of warriors, thus noncombatants should not be
primary targets of attack.
10. Battles should be fought during the usual (summer) campaigning
season.
11. Use of nonhoplite 29 arms should be limited.
12. Pursuit of defeated and retreating opponents should be limited in
duration. 30
By the time of the wars with Persia, the Peloponnesian War, and the changes in
the nature of Greek life, these rules were no longer of general validity. 31
As to the situation in Rome, and as a commentary upon the effects of its
practices, it has been suggested that
[T]he conduct of war [in Rome] was essentially unrestrained. Prisoners could be
enslaved or massacred; plunder was general; and no distinction was recognized
between combatants and noncombatants. Classical Latin, indeed, lacked even
a word for a civilian. The merciless savagery of Roman war in this sense carried
on into the invasion period of the fifth and sixth centuries. ... In practice
[, however,] Roman war was not always so savage. But such was the
understanding of Roman war with which medieval theorists of war worked, and
they erected helium Romanum in this sense into a category of warfare which
permitted the indiscriminate slaughter or enslavement of entire populations
without distinction between combatant and noncombatant status. This was a
style of warfare appropriate only against a non-Roman enemy, and in the
Middle Ages this came to mean that Christians ought only employ it against
pagans. . . ." 32
In line with the practices described in the Old Testament, similar principles
applied in the Islamic world. The Caliph Abu Bakr commanded his forces "let
there be no perfidy, no falsehood in your treaties with the enemy, be faithful to
all things, proving yourselves upright and noble and maintaining your word and
promises truly." 33 Similarly, the leading Islamic statement on the law of nations
written in the ninth century forbids the killing of women, children and the old
or blind, the crippled and the helplessly insane. 34 Moreover, during combat,
"Muslims were under legal obligations to respect the rights of non-Muslims,
both combatants and civilians. . . . [T]he prisoner of war should not be killed,
but he may be ransomed or set free by grace." 35 However, if it was considered
that his death would be advantageous to the Muslims, he might be killed,
unless he converted to Islam. Unlike the Old Testament ban on destruction of
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the land and its products, Islam permitted the inundation or burning of a city,
even though protected persons, including Muslims, might thus be killed. 36
During the Middle Ages, rules of chivalry applied as between the orders of
knighthood, although these did not operate to protect the foot soldiers or the
yeomenry. By the middle of the fifteenth century, a sufficient number of works
were being written on the rules of chivalry as to make it possible to say that:
[B]y the 14 th century, medieval Christendom had developed a law of arms, the jus
militare, well understood and applied by the military and feudal jurisdictions of
Western Europe. The theoretical bases of that law followed the medieval legal
and theological theories of the hierarchy of legal systems, namely, the Law of
God, the eternal law; the law of nature; the jus gentium, its more practical
counterpart; and human positive law. . . . The jus militare which governed the
conduct of the members of the honourable profession of arms was considered a
part of the jus gentium, being part of the customs of those who were professional
men-at-arms and members of the Orders of chivalry where the standards of
Christian and military behaviour were meant to meet. . . . The jus militare being
seen as a part of the jus gentium, the practical legal consequences followed that it
was a body of rules understood and applied throughout the length and breadth of
Christendom, then subject to the divided regimes of sacerdotium and imperium, of
papacy and emperor. The heralds and older knights were considered periti in the
law of arms, while writers such as . . . Christine de Pisan, a woman writer whose
work Livre des Fays d'Armes et de Chivalerie (1407) . . . [were] regarded as
authorities and cited in the jurisdictions where the law of arms was applied. 37 In
the Councils of Princes, in military and feudal courts, learned canonists argued
with erudition and skill the complex matters arising out of warfare before the
experienced knights who composed the military jurisdictions. In cases of
difficulty, the heralds were consulted as the repositories of learning on the law of
arms.
These cases were often concerned with claims to ransom, to booty and spoils,
rather than with the enforcement of honourable conduct in warfare. ... So far as
trials of soldiers in enemy allegiance were concerned, we see a universality of
jurisdiction which is not easy to explain. Doubtless the close nexus of the law of
arms with the jus gentium went part of the way to explain this. . . . The military
calling is seen as a jealous and exclusive one, intimately associated with the
concept of honour. . . . The bearing of arms is so much a matter of honour that
those who do not bear arms are without honour; it is a matter of honour to be
allowed to bear arms [W]hat we would today call criminal conduct in warfare
was seen as a violation of that honour upon which the right to bear arms was
based. A medieval war crime is a breach of the law of arms, 38 it is more specifically
an act contra fidem etjus gentium. . . . Honour is the root of the law of arms. Those
who commit acts of dishonour act contrary to the faith and honour of a knight.
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The Law of War
The law of arms controls and regulates acts of warfare by the professional and
chivalric military classes. We can also discern a universality of jurisdiction to
entertain such allegations of dishonourable acts in warfare. The law of arms
being the measure of such honour binds all those who follow the profession of
arms in Christendom and at all places where Christians perform feats of arms.
The jus gentium of which the law of arms formed part has given us the legacy of
universal jurisdiction over war criminality. 39
As with ancient India, the orders of knighthood condemned the use of
certain weapons, especially those which were not employed in hand-to-hand
encounters between the knights themselves, but which enabled a man not of
noble birth to strike a knight from a distance. In condemnation of such
weapons, the knights found support from the Church. The second Lateran
Council in 1139 condemned 40 the use of the arc and crossbow 41 as hateful to
God, a view coinciding with the concepts of chivalry, 42 which regarded
weapons that could be fired from a distance by a person not a member of the
profession of arms and out of the potential reach of the intended victim as a
disgraceful and improper act. The third Lateran Council reiterated its
anathemization of these weapons, and in 1500 the Corpus Juris Canonic? 3
forbade the use of arrows, darts, or catapults, leading Belli to comment that this
was done "in order to reduce as far as possible the number of engines of
destruction and death." However, "regard is so far lacking for this rule that
firearms of a thousand kinds are the most common and popular implements of
war; as if too few avenues of death had been discovered in the course of
centuries, had not the generation of our fathers, rivaling God with his
lightning, invented this means whereby, even at a single discharge, men are
sent to perdition by the hundreds."
Both Belli's comment and the ideas underlying the approach of the
canonists, as well as the concepts of the Peace and Truce of God, have much in
common with the condemnation by Erasmus of the manner in which the
medieval knight decked himself for war:
Do you think Nature would recognize the work of her own hand — the image of
God? And if any one were to assure her that it were so, would she not break out in
execrations at the flagitious actions of her favourite creature? Would she not say
when she saw man thus armed against man, "What new sight do I behold? Hell
itself must have produced this portentous spectacle I would bid this wretched
creature behold himself in a mirror, if his eyes were capable o( seeing himself
when his mind is no more. Nevertheless, thou depraved animal, look at thyself, if
thou canst; reflect on thyself, thou frantic warrior, if by any means thou mayest
recover thy lost reason, and be restored to thy pristine nature. Take the looking
46
Leslie C. Green
glass, and inspect it. How come that threatening crest of plumes upon thy head?
Did I give thee feathers! Whence that shining helmet? Whence those sharp
points, which appear like horns of steel? Whence are thy hands and feet
furnished with sharp prickles? Whence those scales, like the scales offish, upon
thy body? Whence those brazen teeth? Whence those plates of brass all over
thee? Whence those deadly weapons of offence? Whence that voice, uttering
sounds of rage more horrible than the inarticulate noise of the wild beasts?
Whence the whole form of thy countenance and person distorted by furious
passions, more than brutal? Whence that thunder and lightning which I perceive
around thee, at once more frightful than the thunder of heaven, and more
destructive to man? I formed thee an animal a little lower than the angels, a
partaker of divinity; how earnest thou to think of transforming thyself into a beast
so savage, that no beast hereafter can be deemed a beast, if it be compared with
man, originally the image of God, the Lord of Creation?" 45
As to the role of the canonists in the development of the law of armed
conflict, reference should be made to the Peace of God and Truce of God
movements. It was apparently the violence of the milites raised by feudal lords
which:
[F]irst experienced the impetus to restrain violence in the Middle Ages. That
impetus was the Peace of God movement, whose initial target was precisely the
bullying milites and those bands of armed men who lived on the edges of
civilization, preying on settled areas. The Peace of God idea originally appeared
late in the tenth century; about a generation later came the first appearance of a
concept generally attached to it in historical interpretation, the Truce of God,
and a century after that, in 1139, following the ban on crossbows, bows and
arrows and siege weapons issued by the Second Lateran Council. This last was
directed principally at mercenaries, who often were organized into fighting units
around one or the other of these highly specialized and destructive weapons. . . .
The beginnings of the Peace of God can be identified at the time of the Council
o( Le Puy in 975 . . . imposing on the milites an oath 'to respect the Church's
possessions and those of the peasants' — provisions that were ultimately to
become the core of the idea of noncombatant immunity in late-medieval just war
tradition. . . . The subsequent idea of the Peace of God . . . gradually diminished
the protection extended to peasants and their property while making more
explicit the immunity of ecclesiastical persons and property. ... In the next
landmark statement of canon law on this subject, that in the thirteenth century
De Treuga et Pace, peasants, their goods, and their lands had returned to the
category of those who did not participate in war and thus should not have war
made against them. Gradually, other non-Churchly categories of persons were
added to the list of noncombatants, until by the time of Honore Bonet's L'Arbre
des Batailles in the fourteenth century the listing had come to include all sorts of
47
The Law of War
secular persons who were noncombatants by virtue of not being knights ... or
not being physically able to bear arms. . . . Peasants and clergy alike were defined
in the former way, while such noncombatant groups as women, children, the
aged, and the infirm belonged to the latter category. ... In the shorter run, the
effect of the Peace of God was not so much to protect peaceful noncombatants . . .,
but to mark off who might legitimately resort to arms and for what end. ... [I]n
the long run, the idea of noncombatant immunity contained within the Peace of
God developed into a much more universal concept with far-reaching
implications. This is one of the . . . core ideas around which the jus in bello of just
war tradition developed, and modern humanitarian law of war and moral
argument centering on the concept of discrimination are legacies of this slender
tenth-century beginning While the Peace of God aimed at protecting certain
kinds of person and their property . . . the Truce of God [beginning with the
Council of Toulouges in 1027] aimed instead to eradicate the use of arms entirely
during certain periods [ — namely the Sabbath, and such holy days as Christmas
and Lent — ]. . . . Still, the Truce of God applied only among Christians, and this
meant that violence could still be employed by Christians against non-Christians
during truce periods. In practice this meant that violence could be directed
against two main groups: infidels, as in the Crusades; and heretics, as in religious
persecution. . . . How did the ban on crossbows, bows and arrows, and siege
weapons contribute to [limiting violence] ? ... By the twelfth century the typical
mercenary belonged to a well-organized band whose leader sold or bartered their
services as a group and then paid his followers. 46 This was the condottori pattern,
which reached its zenith in the fifteenth and sixteenth centuries. ... In the
Middle Ages, what held these bands together . . . was expertise in one or another
weapon that could be especially telling in the prevailing kind o( warfare.
Specifically mercenary companies were formed around the possession and skilled
use of bows and arrows and crossbows, neither of which were employed by
knights but which could be devastating when used against knights, and siege
machines, these being so expensive and difficult to transport and requiring so
much skill to use properly that wealthy nobles preferred not to own their own but
hire mercenary companies specializing in their use. From this it follows easily that
the new-style mercenaries could be controlled by constraints placed on the use of
their weapons. The knightly class in particular had good reason to favor such
restraints, since there was no glory in falling in battle to an arrow shot by a
commoner and since siege weapons represented the only significant threat to a
nobleman seeking security from attack in his castle. . . ." 47
The feudal knights were fully aware of the existence o{ what they knew as
the "law of chivalry" or of arms, 48 which regulated their affairs and which was
enforced by a variety of Courts of Chivalry 49 or specially appointed tribunals.
Thus, in 1474, representatives of the Hanseatic cities tried Peter of Hagenbach
at Breisach 50 for administering occupied territories in a fashion "contrary to the
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Leslie C. Green
laws of God and of man." His plea that he was only carrying out the orders of his
prince was rejected and he was executed.
Since foot soldiers were not regarded as members of the honorable
profession of arms, the rules of chivalry did not apply to them. However, even
they were not free to pursue their own fashion of fighting, for this was regulated
by national codes of arms which could be enforced by commanders exercising
"rights of justice." Among the earliest of such codes was the "Articles of War"
promulgated by Richard II in 1385. This forbade, on pain of death, any robbery
or pillage of a church or an attack on a churchman, as well as "forcing" any
woman. It also recognized the right of a captor to take his prisoner's parole,
although:
[I]f any one shall take a prisoner, as soon as he comes to the army, he shall
bring him to his captain or master on pain of losing his part [of the captive's
property] . . .; and that his said captain or master shall bring him to our lord the
King, constable or marschall, as soon as he well can, ... in order that they may
examine him concerning news and intelligence of the enemy. . . ." 51
This indicates that war was no longer construed as a conflict between
individual and individual, but between organized forces with prisoners no
longer in a master- and-servant relationship with their captors, but instead,
considered as the "property" of the ruler under whose auspices the captor was
fighting.
Perhaps more significant from our point of view, and foretelling much of the
present law, were the "Articles and Military Lawes to be Observed in the
Warres" promulgated by Gustavus Adolphus of Sweden in 1621.
Art. 85. He that forceth any woman to abuse her, and the matter bee proved, he
shall die for it.
Art. 88. No souldier shall set fire upon any Towne or Village in the enemies'
Land, without he be commanded by his Captain: neither shall any Captain give
any such command unless he hath first received it from us or our General: who so
doth the contrary, he shall answer it in the Generals Councell of Warre. . . .
Art. 92. They that pillage or steal either in our Land or in the enemies, . . .
without leave, shall be punish'd as for other theft.
Art. 94. If any man give himselfe to fall upon the pillage before leave be given him
so to doe, then may any of his Officers kill him. . . .
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The Law of War
Art. 96. No man shall presume to pillage any Church or Hospitall, although the
Strength be taken by assault; except he be first commanded, or that the Souldiers
and Burgers be fled thereinto and doe harm, from thence; who dares the
contrary, shall be punished. . . .
Art. 97. No man shall set fire upon any Hospitall, Church, Schoole, or Mill, or
spoyle them in any way, except he be commanded; neither shall any tyrannize
any Churchman, or aged people, men or women, maides or children, unless they
first take up arms against them, under paine of punishment. . . .
Art. 98. No souldier shall abuse any Churches, Colledges, Schooles or
Hospitalls; ... no souldier shall give any disturbance to any person exercising his
sacred function or Ministery, upon paine of death.
Art. 113. Our Commanders shall defend the countrey-people and Ploughmen
that follow their husbandry, and shall suffer none to hinder them in it.
Art. 116. Whatsoever is not contained in these Articles, and is repugnant to
Military Discipline, or whereby the miserable and innocent countrey may against
all right and reason be burdened withall, whatsoever offence finally shall be
committed against these orders, that shall the severall Commanders make good,
or see severally punished unlesse themselves will stand bound to give further
satisfaction. 52
In 1639 England had a full system of Laws and Ordinances of Warre 53
regulating the behavior of forces in the field, forbidding, among other things,
marauding of the countryside, individual acts against the enemy unauthorized
by a superior, private taking or keeping of booty, or private detention of an
enemy prisoner. Similar codes existed in Germany and Switzerland. 54 To some
extent, these codes reflected the principles to be found in various writings on
military matters and the law of war, including, for example, those of Ayala, De
Jure et Officiis et Disciplina Militari, 1582; Belli, De Re Militari et Belb Tractatus,
1663; Gentili, Dejure Belli, 1612; Legnano, De Bello, De Represaliis et De Duello,
1447; and even Grotius, whose seminal work, De Jure ac Pacis, 1625, is
frequently treated as if it were the fountainhead of all knowledge on the
then-existing international law. In the latter work, Grotius emphasizes that war
was the normal order of the day. All these to some extent reflected earlier
works devoted to the hoi des Batailles, and nearly all claimed to be declaring the
law that armies were obliged to follow. In many cases, they were mere
abstractions based on existing practice, and it is noticeable how much
agreement there is across the whole spectrum. These principles drawn from
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practice and doctrine are expressive of the customs of war and, to a great
extent, constitute what are now known as the customary law of armed conflict.
Of the codes it has been said that, combined with the customary rules, they
form "le meilleur frein pratique pour imposer aux armees le respect d'un modus
legitimus de mener les guerres." 55
As has been mentioned, the principles of chivalry were of universal
application and they frequently confirmed the immunity from attack or
capture of hospital staff, chaplains, doctors, surgeons or apothecaries.
However, while Belli, basing himself on the writings of Bartolus in the
fourteenth century, asserted that during war the "persons of doctors may not be
seized, and they may not be haled to court or otherwise harassed, [and]
attendants may not search them for the carrying of arms," 56 there was no
general recognition of this. To a large extent it depended on the discretion of a
commander whether medical personnel accompanied his forces and often the
only one would be his personal physician. However, Gustavus Adolphus had
four surgeons attached to his regiments and the Armada too carried medical
personnel, but these only looked after their own. By a decree of Louis XIV of
1708, a permanent medical service was established "a la suite des armees et
dans les places de guerre." 57 Even before this, during the siege of Metz in
1552-3, Francois de Guise had summoned the French surgeon Para "to succour
the abandoned wounded soldiers of the enemy and to make arrangements for
their transport back to their army." 58
By the end of the seventeenth century, occasional agreements were being
drawn up between rival commanders for mutual respect towards the wounded
and hospitals. A fairly sophisticated agreement of this kind was entered into
between the French and English at L'Ecluse in 1759, whereby:
[H]ospital staff, chaplains, doctors, surgeons and apothecaries were not ... to be
taken prisoners; and, if they should happen to be apprehended within the lines of
the enemy, they were to be sent back immediately. The wounded of the enemy
who should fall into the hands of the opponents were to be cared for. . . . They
were not to be made prisoner and might stay in hospital safely under guard.
Surgeons and servants might be sent to them under the general's passport " 59
Some twenty years later, in 1780, Peyrilhe proposed international
recognition of the principle that the wounded should not be made prisoners of
war nor enter into the balance of exchanges. 60 However, it was not until after
the experiences of Florence Nightingale in the Crimea and the publication of
Henri Dunant's Souvenir de Solferino in 1862, reporting on the horrors he had
witnessed at that battle, that Peyrilhe's proposal came to fruition, with the
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The Law of War
establishment of the International Committee of the Red Cross in 1863 61 and
the adoption in 1864 of the first Geneva Convention for the Amelioration of
the Condition of the Wounded of Armies in the Field. 62
Apart from arrangements and developments of this kind, other customs
were evolving. During the Hundred Years War, guerre mortale, war to the
death, was distinguished from bellum hostile, a war between Christian princes
when prisoners could still ransom themselves, guerre guerriable, fought in
accordance with the feudal rules of chivalry, and the truce, which included a
temporary cessation of hostilities during which the wounded and dead might be
collected, with the resumption of hostilities following a truce considered a
continuation of an ongoing conflict, rather than the opening of a new one.
Each had its own rules, but they were rules of honor.
In medieval and later European wars, the capture of cities was of major
importance and could be effected by surrender or siege and assault. If by
agreement, the inhabitants were treated in accordance with its terms, but if by
assault, there were no legal restrictions, although churchmen, women and
children were frequently spared. Siege required peculiar weapons, both
offensive and defensive, 63 but as sieges became less frequent and these weapons
of less value, they tended to fall into desuetude and came to be considered
illegal, 64 only to be replaced by weapons more suited to the newer methods of
warfare.
These developments were in line with others which had ensued by the time
of the 1648 Treaty of Westphalia terminating the Thirty Years War. Members
of fighting units were now mustered in national armies and war was no longer a
matter of personal relations between princely commanders, with the individual
soldier entering into a personal contract with his commander — although there
are still vestiges within national armies of troops being raised by a particular
nobleman 65 — and the individual captor no longer had any rights over his
captive. War was now a matter between sovereigns, and for a legally recognized
armed conflict to exist there had to be a hostile contention between States by
means of organized armed forces under a proper disciplinary system. 66 At the
same time, the old distinction between just and unjust wars 67 had disappeared,
and it had become accepted that any war conducted by a Christian prince was
clearly just, 68 although both Suarez and Vitoria had reservations concerning
Spanish claims to the colonization of the new world. 69
It was not until the American Civil War that there was the first attempt to
produce a modern code for the conduct of armed forces in the field. Professor
Francis Lieber of Columbia College drew up what became, by order of
President Lincoln, Instructions for the Government of Armies of the US in the
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Field. 70 These were so consistent with what were generally accepted practices
that they formed the basis for similar codes in Prussia, 1870; The Netherlands,
1871; France, 1877; Russia, 1877 and 1904; Serbia, 1878; Argentina, 1881;
Great Britain, 1883 and 1904; and Spain, 1893. 71 By the Instructions:
[M]ilitary necessity does not admit of cruelty — that is, the infliction of suffering
for the sake of suffering or revenge . . . the unarmed citizen is to be spared in
person, property, and honor as much as the exigencies of war will admit . . .
protection of the inoffensive citizen of the hostile state is the rule The United
States acknowledge and protect, in hostile countries occupied by them, religion
and morality; strictly private property; the persons of the inhabitants, especially
those of women; and the sacredness of domestic relations. Offenses to the
contrary shall be rigorously punished All wanton violence committed against
persons in the invaded country ... all robbery ... or sacking, even after taking a
place by main force, all rape, wounding, maiming or killing of such inhabitants
are prohibited under the penalty of death. . . . Crimes punishable by all penal
codes, such as arson, murder, maiming, assaults, highway robbery, theft,
burglary, fraud, forgery, and rape, if committed by an American soldier in a
hostile country against its inhabitants, are not only punishable as at home, but in
all cases in which death is not inflicted, the severer punishment shall be
preferred." 72
Despite the number of countries adopting similar codes, no agreed
international document acknowledging this existed, although it was generally
accepted that these postulates constituted principles amounting to
international customary law and, to the extent that they were not expressly
rejected by any State, especially a major military power, nor overruled by any
treaty, they are as obligatory as any other rules of international law.
The first international agreement to be generally accepted came at the end
of the Crimean War with the adoption of the Declaration of Paris, 1856. 73 This
was confined to maritime warfare, forbidding the issue of letters of marque,
stating that a blockade was only legal if effective, and granting immunity from
capture to enemy goods on neutral ships and neutral goods on enemy ships,
unless they constituted contraband. Of more general significance was the 1864
Geneva Convention on wounded in the field, already mentioned, which
recognized the distinctiveness and immunity of the Red Cross and of personnel
wearing this insignia. This Convention was amended and revised in a series of
Geneva Conferences extending from 1886 to 1977, with the Conventions of
1949, as added to by the 1977 Protocols, constituting the current body of
humanitarian law governing the treatment and protection of those hors de
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The Law of War
combat, civilians and other noncombatants. This body of law is known as the
Geneva Law. 74
In addition to the work done on behalf of those hors de combat, efforts were
taking place to control the means of conducting warfare. The Russians had
invented a bullet which exploded on contact, and in 1867 called a conference
resulting in the Declaration of St. Petersburg. This forbade the use of
projectiles weighing less than 400 grammes that were explosive or charged with
fulminating or inflammable substances. The Declaration was of general
application, applying equally to land and sea warfare. However, its impact was
limited since it contained an all-participation clause, rendering it inapplicable
in any war in which any belligerent was not a party.
Perhaps more significant than the Declaration, was the accompanying
Preamble, which is important to the present day:
[T]he progress of civilization should have the effect of alleviating as much as
possible the calamities of war; the only legitimate objective which states should
endeavour to accomplish during war is to weaken the military forces o{ the
enemy; for this purpose it is sufficient to disable the greatest possible number of
men; this object would be exceeded by the employment of arms which uselessly
aggravate the sufferings of disabled men, or render their death inevitable; the
employment of such arms would, therefore, be contrary to the laws of
humanity. 75
This document may be considered the precursor of what is now known as the
Hague Law, concerned with the means and methods of conducting operations
during armed conflict, which had its origin in a conference called by the Czar in
1874. The Brussels Protocol aimed at revising "the general usages o{ war,
whether with the object of defining them with greater precision, or with the
view of laying down, by a common agreement, certain limits which will
restrain, as far as possible, the severities of war." To this end a Project of an
International Declaration concerning the Laws and Customs of War was
drafted in the hope that "war being thus regulated would involve less suffering,
would be less liable to those aggravations produced by uncertainty, unforeseen
events, and the passions created by the struggle; it would tend more surely to
that which should be its final object, viz., the re-establishment of good
relations, and a more solid and lasting peace between the belligerent States.'"
The Project failed for lack of ratifications, but it formed the basis on which
L'Institut de Droit International drew up its Oxford Manual of the Laws of War
on Land. According to the Preface:
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Leslie C. Green
[I]ndependently of the international laws existing on this subject, there are
certain principles of justice which guide the public conscience, which are
manifested even by general customs, but which it would be well to fix and make
obligatory . . . [but since it] might be premature or at least very difficult [to obtain
a treaty, the Manual could serve as the basis for national legislation, as being] in
accord with both the progress of juridical science and the needs of civilized
armies. Rash and extreme rules will not be found therein. 77 The Institut has not
sought innovations in drawing up the Manual; it has contented itself with stating
clearly and codifying the accepted ideas of our age so far as this has appeared
allowable and practicable." 78
Appreciating the pressures imposed upon the fighting man and the civilian
when there is an actual combat, the Institute called upon States to disseminate
the rules among its entire population.
The Brussels Project and the Oxford Manual, served to inspire the Czar to
call a Peace Conference at The Hague in 1899. This conference adopted a
number of Declarations together with a Convention (which was amended in
1907) that still constitute the basic law in hello. Recognizing the arrival of a
potentially new means of attack, the Conference adopted a Declaration against
the launching of projectiles and explosives from balloons or other similar
methods. This was replaced in 1907 and remains the only existing
international agreement on aerial warfare. Further Declarations ban
projectiles, the only use of which is the diffusion of asphyxiating or deleterious
gases, as well as the use of bullets which expand or flatten easily in the human
body. 79
Most important of the instruments adopted at The Hague is Convention II
of 1899, now IV of 1907, to which is attached a set of Regulations still
constituting the basic statement of the law of warfare on land — although its
principles are now regarded as so fundamental as to amount to customary law
relevant in all theaters. It is, of course, impossible to cover all eventualities or
provide for unforeseen developments. For this reason, the parties adopted the
Martens Clause:
Until a more complete code of the laws of war has been issued [- and it never
has-], the High Contracting Parties deem it expedient to declare that, in cases
not included in the [annexed] Regulations, the inhabitants and the belligerents
remain under the protection and the rule of the principles of the law of nations,
as they result from the usages established among civilized peoples, from the laws
of humanity, and the dictates of the public conscience. 80
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The Law of War
This, in somewhat slightly amended form, appears in virtually every subsequent
agreement concerning humanitarian law in armed conflict.
At the 1907 Conference, further Conventions, covering the opening of
hostilities, naval warfare, and the rights and duties of neutrals, were adopted. 81
Since each of these contains an all-participation clause, the Martens Clause,
with its clear references to chivalry, humanitarianism and accepted usages,
assumes increased importance. In addition, to the extent that any of the
provisions in the Regulations, Conventions or Declarations are now
considered to be declaratory of, 82 or having developed into, customary law,
they will be applicable universally and the wording of the Convention will be
treated as expressing that law. 83
Hague Convention IV makes no provision for personal liability in the event
of its breach, but Article 3 provides that "a belligerent party which violates the
provisions of the Regulations shall, if the case demands, be liable to pay
compensation. It shall be responsible for all acts committed by persons forming
part of its armed forces." While this is the first "black letter" acknowledgment
of the enforceability of any of the laws of war, it is merely an affirmation of the
general principle relating to the liability of a State for breach of treaty or for its
tortious wrongs or acts of its subordinates. Prior to the establishment of the
Nuremberg International Military Tribunal in 1945, 84 the only way of
proceeding against individual offenders was by national tribunals 85 applying
customary law, 86 the Regulations, 87 or, in the case of their own personnel, the
national military or criminal code. 88 Since Nuremberg, nearly all trials 89 for
offenses against the laws of war have made reference to the principles
stemming from the judgment of the Nuremberg Tribunal. 90
Probably, the most important provision of the 1907 Regulations is Article 1
defining the scope of application of the Regulations — armies, militia units, and
volunteer forces, provided they are commanded by a person responsible for his
subordinates, have a fixed distinctive emblem recognizable at a distance, carry
their arms openly, and conduct their operations in accordance with the laws
and customs of war. This purview of relevant personnel has been widened
somewhat by Protocol I of 1977. However, from the point of view of the serving
soldier, Articles 22 and 23, limiting the means of waging war and the use o{
forbidden weapons (although it may well be difficult for him to know whether a
particular weapon issued to him is in fact forbidden) , as well as forbidding the
imposition of unnecessary suffering, are those most likely to result in personal
liability. Even since the adoption of the Protocols, this is still largely the case.
While no Conference has been called since 1907 to revise or update the
general laws and customs of war, there have been conventions directed to
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Leslie C. Green
specific issues, the protection of cultural property in armed conflict, 91 the
prohibition of military or other hostile use of environmental modification
techniques, 92 the use of conventional weapons, 93 the production, stockpiling
and use of chemical weapons, 94 and, most importantly, the conference that led
to the adoption of Protocols I and II in 1977.
In so far as maritime warfare is concerned, in addition to the Hague
Conventions already mentioned, one of which, Convention XII, sought
unsuccessfully to set up an International Prize Court, the Declaration of
London of 1909, 95 is important. The Declaration stated that it contained
"agreed rules" on blockade, contraband, unneutral service, enemy character,
convoy, and resistance to search. Though unratified, its substance was in
accord with generally recognized principles and, by and large, was observed
during World War I; 96 as recently as 1960, an Egyptian Prize Court, citing the
Declaration, condemned cargo from Israel on a Greek ship seeking to traverse
the Suez Canal. 97
Other agreements relating to sea warfare, specifically submarines and
noxious gases, 98 were adopted in London in 1922, but never came into force,
although the provisions on submarine warfare were confirmed by the London
Protocol of 1936. Pursuant to the Protocol, in their operations against
merchant ships, submarines are required to conform to the same rules as
surface vessels.
In particular, except in the case of persistent refusal to stop on being duly
summoned, or of active resistance to visit or search, a warship, whether surface
vessel or submarine, may not sink or render incapable of navigation a merchant
vessel without having first placed passengers, crew and ship's papers in a place of
safety. For this purpose the ship's boats are not regarded as a place of safety unless
the safety of the passengers and crew is assured, in the existing sea and weather
conditions, by the proximity of land, or the presence of another vessel which is in
a position to take them on board. 99
World War II practice shows that this rule was more observed in the breach
than observance.
Although the parties at The Hague dealt with projectiles from balloons, they
did not appreciate the potential importance of air warfare. Experience in
World War I indicated that this was an area which should not be ignored, and
in 1923 a Conference of Experts drew up agreed Rules of Air Warfare. 100 These
Rules, however, have never come into force, although they are generally
regarded as having had sufficient influence for it to be said that "to a great
extent, they correspond to the customary rules and general principles
57
The Law of War
underlying the conventions on the law of war on land and at sea." 101 This view
was accepted by the Tokyo District Court when considering the legality of the
dropping of the atomic bombs on Hiroshima and Nagasaki.
The Draft Rules of Air Warfare cannot directly be called positive law, since they
have not become effective as authoritative with regard to air warfare. However,
international jurists regard the Draft Rules as authoritative with regard to air
warfare. Some countries regard the substance of the Rules as a standard of action
by armed forces, and the fundamental provisions of the Draft Rules are
consistently in conformity with international law regulations, and customs at
that time [1945]. 102
While the United States Department of the Air Force does not recognize
the Code as customary law, it does in fact often draw attention to the
compatibility of its own rules with those adopted in 1923. 103 Moreover, to the
extent that these Rules may be declaratory of general customary law, they apply
to air warfare, and by Protocol I the rules concerning the general protection of
the civilian population "apply to any land, air or sea warfare which may affect
the civilian population, individual civilians or civilian objects on land. They
further apply to all attacks from the sea or from the air against objectives on
land but do not otherwise affect the rules of international law applicable in
armed conflict at sea or in the air." 104
Although the use of poison has been condemned since classical times,
poison gas was used during World War I. In 1925 the Geneva Protocol for the
Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and
of Bacteriological Methods of Warfare was adopted. 105 Many countries
contend that this does not extend to non-fatal lachrymose or nerve gases, while
others reserve the right to use it, for example, to suppress riots in
prisoner-of-war camps. Others state they will only apply it as between
themselves and belligerents who have also ratified the Protocol, and yet others
claim the right to use gas against a belligerent who has employed it against their
forces or those of their allies. While there are reports that gas and other
chemical weapons were used by Italy against Ethiopia, by Iraq against Kurdish
rebels, and, perhaps during the Gulf War, it is likely that the Protocol would
now be regarded as declaratory of customary law, at least so far as first use is
concerned. Moreover, as recently as 1993, a further Convention sought to
extend the Protocol so as to ban the manufacture, stockpiling, or use of any
chemical weapons. 106
Experience in World War II made it clear that the law as it existed in 1939
was no longer adequate, even though, as pointed out by the Nuremberg
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Tribunal, the rules embodied in Hague Convention IV and the annexed
Regulations "were recognized by all civilized nations and were regarded as
being declaratory of the laws and customs of war," and as such applicable to all
belligerents, whether party to that instrument or not. The same view was taken
of the Geneva Convention of 1929 relating to Prisoners of War, 107 a finding
that was particularly important since neither the Soviet Union 108 nor Japan was
a party thereto, although Japan stated it would abide by its provisions; 109
Germany contended that it did not apply to protect Soviet prisoners.
Perhaps the most significant development in the law of war to result from
World War II was the promulgation of the London Charter establishing the
International Military Tribunal at Nuremberg, 110 with jurisdiction over crimes
against peace, war crimes and crimes against humanity. To the extent that it
was merely exercising its jurisdiction in accordance with the Charter, the
Tribunal was not itself creating any law. While not directly concerned with
regulating the conduct of hostilities, perhaps the major innovation was the
holding by the Tribunal that a war of aggression or in breach of treaty was a
crime, though criticism may be directed at the manner in which the Tribunal
concluded that the Pact of Paris, 111 whereby the parties renounced war as an
instrument of national policy, had made resort to "aggressive" war an
international crime; for the Tribunal, it was "not only an international crime: it
is the supreme international crime differing only from other war crimes in that
it contains within itself the accumulated evil of the whole." 112 Surprisingly,
however, none of the accused found guilty of this "supreme" crime, but not
additional "lesser" war crimes, was sentenced to death.
As to war crimes in the traditional sense of that term, the Tribunal added
little except to hold that status of the accused, even as head of state or
commander in chief, would not provide immunity from prosecution, and
confirm that superior orders was not a defense to a war crimes charge, but could
be pleaded in mitigation. The other innovation was the concept of crimes
against humanity. This offense related to breaches of the law against civilians,
even those of the same nationality as the perpetrator. While there has been a
tendency to assume that this was a major development of a general character, it
should not be forgotten that, as defined in both the Charter and the Judgment,
crimes against humanity were committed only if they were part and parcel of
the war of aggression or of war crimes. Moreover, strictly speaking, once the
Tribunal was functus officio, this concept should have become of less
significance. 113 However, with the development of the law concerning human
rights and humanitarian law, and in an attempt to create a system for
prosecuting crimes committed in a noninternational conflict, the application
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The Law of War
of the concept was widened. Perhaps the most significant statement to this
effect is to be found in the Interim Report of the Commission established to
investigate crimes committed during the civil war in Rwanda:
If the normative content of "crimes against humanity" had remained frozen in its
Nuremberg form, then it could not possibly apply to the situation in Rwanda . . .
because there was not a "war" in the classic sense of an inter-State or
international armed conflict.
However, the normative content o( "crimes against humanity" — originally
employed by the Nuremberg tribunal for its own specific purposes in connection
with the Second World War — has undergone a substantial evolution. . . .
"[C] rimes against humanity" finds its very origins in "principles of humanity"
first invoked in the early 1800s by a State to denounce another State's human
rights violations of its own citizens. Thus, "crimes against humanity" as a
juridical concept was conceived early on to apply to individuals regardless as to
whether or not the criminal act was perpetrated during a state of armed conflict
or not and regardless of the nationality of the perpetrator or victim. The content
and legal status of the norm since Nuremberg has been broadened and expanded
through certain international human rights instruments adopted by the United
Nations since 1945. . . .
The Commission of Experts on Rwanda considers 114 that "crimes against
humanity" are gross violations of fundamental rules of humanitarian and human
rights law committed by persons demonstrably linked to a party to the conflict as
part of an official policy based on discrimination against an identifiable group of
persons, irrespective of war and the nationality of the victims. 115
It should be pointed out here that many commentators would today question
whether such crimes need to be the consequence of a determined policy based
on discrimination.
Just as it would now be considered as part of the law that crimes against
humanity are not confined to an international armed conflict, so we find that
the 1948 Genocide Convention, which deals with acts directed at the
destruction of a defined group qua group, expressly states in Article 1 that
"genocide, whether committed in time of peace or in time of war, is a crime
under international law." 116 There should, therefore, be no difficulty in
applying this Convention in any conflict, whether international or
noninternational, when the acts condemned are directed at a defined group
with the intention of destroying its group characteristics. Since most crimes
against humanity, as defined in the London Charter or international
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Leslie C. Green
agreements on human rights, do not normally amount to offenses as grave as
genocide, it should be possible in the future to charge those responsible for
genocide with crimes against humanity, without having to prove "intent" for
genocide is clearly the gravest of all crimes against humanity.
The General Assembly adopted a resolution Affirming the Principles of
International Law recognized by the Charter of the Nuremberg Tribunal. 117 As
a General Assembly resolution, it lacks any strict legal force, although it
embodies great political and moral authority. This authority has been
enhanced by the International Law Commission's enunciation of Principles of
International Law recognized by the Charter and Judgment. 118 Principle I
affirmed the personal liability of anyone committing a crime under
international law; Principle II provides that the failure of national law to
condemn a particular act does not remove personal liability for that act under
international law; Principle III prohibits a head of state from claiming
immunity from international criminal liability; Principle IV holds that superior
orders cannot be pleaded when a moral choice was open to an accused;
Principle V entitles war criminals to a fair trial; Principle VI confirms the
criminality of the acts condemned in the London Charter; and Principle VII
reaffirms the Tribunal's finding that complicity in any of these acts is itself a
crime. These Principles have been reaffirmed by the Commission in its Draft
Code of Crimes Against the Peace and Security of Mankind. 119
From the point of view of the law in hello, the most important development
after 1945 was the adoption of the four Geneva Conventions in 1949.
Conventions I, II, and III, 120 — addressing the wounded and sick on land and at
sea, as well as prisoners of war — are little more than reaffirmations and
extensions of the 1929 Conventions, with amendments directed at filling
lacunae, which became apparent during World War II. More innovative was
Convention IV concerning the protection of civilians in time of war,
particularly in occupied territory, 121 an issue which had become of supreme
concern in the light of German practice in occupied Europe.
Further, since 1945 it had become obvious that many or most of the conflicts
that had occurred or were likely in the foreseeable future were not
international conflicts in the normal interstate sense, but rebellions,
revolutions, or struggles for national independence. It is for this reason that the
Conventions replace the term "war," with its inter-State connotation, by
"armed conflict" and "enemy" by "adverse party" — although the mind boggles
at the idea of an infantry sergeant saying, "Hold your fire until you see the white
of the adverse party's eyes!" In such conflicts, ideological differences frequently
result in atrocities far more outrageous than any of those normally inherent in
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The Law of War
an international conflict. In view of this, each of the Conventions has, as its
Article 3, what may be regarded as a minimal code of humanitarian law to be
followed "in the case of armed conflict not of an international character
occurring in the territory of one of the High Contracting Parties." In addition,
each contains a definition of those breaches of the Convention which are
considered "grave," and which are declared to be criminally punishable, 122
Parties agree to amend their legal systems to ensure the punishment of such
offenses. However, the relevant article never refers to the provisions of Article
3 common to the Conventions. But, if this Article is to have any meaning, it
follows that disregard of the provisions therein embodied must be enforceable;
thus, offenders must be punishable. Moreover, the offenses listed in the
Conventions, regardless of the specific Article concerned, are, for the most
part, offenses which would amount to crimes against humanity and be
punishable as such. The listing of particular offenses as "grave breaches" does
not remove the criminal character from other acts which would amount to war
crimes.
Adoption of the Civilians Convention in 1949 was still not regarded as
sufficient to satisfy the purpose for which it was promulgated. Therefore, in
1968, the International Conference on Human Rights in Tehran adopted a
Resolution calling for Respect for Human Rights in Armed Conflicts, 123
although none of its Resolutions carries legal force. However, they introduced
a new idea to the effect that those engaged in "struggles" against "minority
racist or colonial regimes" should not be treated as traitors but as prisoners o{
war or political prisoners. This added to the impact of the General Assembly's
resolution 124 confirming the assertion of the 1965 Conference of the Red Cross
on the Protection of Civilian Populations against the Dangers of Indiscriminate
Warfare:
(i) the right of parties to a conflict to adopt means of injuring the enemy is not
unlimited;
(ii) it is prohibited to launch attacks against the civilian population, as such;
(iii) distinction must be made at all times between persons taking part in the
hostilities and members of the civilian population to the effect that the latter be
spared as much as possible. 125
Carrying the proposals further, the Institute of International Law, at its
Edinburgh Conference of 1969, adopted a Resolution on the distinction
between military and nonmilitary objects, particularly the problems associated
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with weapons of mass destruction. 126 In view of the status of the Institute, its
views cannot be ignored, even though the United States "does not accept them
as an accurate statement of international law relating to armed conflict . . .
[but] regard [s] as declaratory of existing customary law . . . [the] general
principles recognized [and] unanimously adopted by the United Nations
General Assembly." 127 However, bearing in mind the importance of opinio juris,
some reference to the Institute's views must be made.
First, the Institute made reference to the "consequences which the
indiscriminate conduct of hostilities and particularly the use of nuclear,
chemical and bacteriological weapons, may involve for civilians and for
mankind as a whole . . . [and went on to enunciate] the principles to be
observed in armed conflicts by any de jure or de facto government, or by any
other authority responsible for the conduct of hostilities." 128 It emphasized that
the distinction between military and nonmilitary objectives, as well as between
combatants and civilians, must be constantly preserved; that neither the
civilian population nor specially agreed protected establishments may ever be
regarded as military objectives, nor "under any circumstances" may the means
indispensable for the survival of the civilian population or those which serve
primarily humanitarian purposes; that all existing protective principles of
international armed conflict law must be preserved and observed; and that
[E]xisting international law prohibits, irrespective of the type of weapon used,
any action whatsoever designed to terrorize the civilian population. . . . [and]
prohibits the use of all weapons which, by their nature, affect indiscriminately
both military objectives and non-military objects, or both armed forces and
civilian populations. In particular, it prohibits the use of weapons the destructive
effect of which is so great that it cannot be limited to specific military objectives
or is otherwise uncontrollable (self-generating weapons), as well as "blind"
weapons. [It also] prohibits all attacks for whatsoever motives or by whatsoever
means for the annihilation of any group, region or urban centre with no possible
distinction between armed forces and civilian populations or between military
and non-military objectives. 129
The General Assembly subsequently adopted a Resolution which broadly
accepted the principles laid down by the Institute. However, it went somewhat
further, in that, while affirming the principles for the protection of civilians, it
asserted that "fundamental human rights, as accepted in international law and
laid down in international agreements, continue to apply fully in situations of
armed conflict." 130 This appears to be a new departure from previous
understanding, for it would normally be thought that as lex specialis the Hague
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The Law of War
and Geneva Law overrode the lex generalis of human rights instruments which
might be considered applicable in peacetime, especially as these latter
instruments usually recognize that most, but not all, of their provisions are
derogable in time of emergency, including armed conflict. 131
Since this Resolution was adopted without any opposition, it might be
assumed that the members of the international community thought that the
principles therein enunciated amounted to an expression of customary law,
which would render the United States reservations concerning the Institute's
proposals of less significance than they appear at first glance.
There followed the adoption of a Convention on the Prohibition of the
Development, Production and Stockpiling of Bacteriological (Biological) and
Toxin Weapons and their Destruction in 1972, 132 but this was silent as to use.
Difficulties arose in relation to chemical weapons and a further, as yet
unratified, Convention was adopted in 1993 directed against the
Development, Production, Stockpiling and Use of Chemical Weapons and
their Destruction. 133
All these proposals with regard to the means and methods of warfare led the
International Committee of the Red Cross to propose amendments to the 1949
Conventions in an effort to meet some of the concerns now apparent. The
Conference that ensued met from 1974 to 1977 and produced two Protocols
supplementing, but not in any way replacing, the 1949 Conventions — I on
international and II on noninternational armed conflicts. 134
Apart from bringing the law up to date, Protocol I makes fundamental
changes in the existing law regulating international armed conflicts and, while
formally concerned with humanitarian law as propounded in the Geneva law,
does in fact add to some of the Hague law concerning means and methods.
Most importantly, recognizing the principles of political correctness and
concerns regarding self-determination, it provides that struggles conducted by
national liberation movements in the name of self-determination are to be
considered international conflicts and thus subject to the international law of
armed conflict. 135 It also changes the definition of combatants on behalf of the
members of such movements, even though they are not wearing recognized
uniforms nor carrying their arms openly save when actually engaged and visible
to the adversary while preparing to engage. 136 The Protocol extends the
protection given to civilian and nonmilitary objects and forbids actions likely to
have a deleterious effect upon civilians. Thus, it forbids attacks upon narrowly
defined "dangerous installations" — dams, dykes and nuclear electrical
generating stations. Changing long-recognized law, it defines mercenaries and
denies them prisoner of war status. It widens the concept of grave breaches as
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defined in the Conventions, and recognizes civil defense as a matter requiring
separate acknowledgment. In an effort to make the law clearly understood, it
requires legal advisers to be attached to military units, without specifying the
level of attachment, and expressly confirms the principle of command
responsibility, including the obligation of a commander to ensure compliance
with the law by his subordinates by imposing a duty to suppress, repress and
punish offenders.
The Protocol reflects many of the principles adopted by the Institute at its
Edinburgh meeting, but ignores completely any reference to weapons of mass
destruction other than by implication when forbidding long- term damage to
the environment or insisting on the preservation of material essential to the
sustenance of the civilian population. The reason put forward for ignoring the
problems of the nuclear weapon was that this was essentially an issue of
disarmament rather than humanitarian law. Nevertheless, when the General
Assembly subsequently asked the World Court for an advisory opinion on the
Legality of the Threat or Use of Nuclear Weapons, 137 the Court found itself unable
to give a direct answer, though it had some difficulty in leaving the issue
completely open.
The Court not having found a conventional rule of general scope, nor a
customary rule specifically proscribing the threat or use of nuclear weapons per
se, it will now deal with the question whether recourse to nuclear weapons must
be considered as illegal in the light of the principles and rules of international
humanitarian law applicable in armed conflict. . . .
[The] two branches of law applicable in armed conflict [ — the Hague and
Geneva law — ] have become so closely interrelated that they are considered to
have gradually formed one complex system, known today as international
humanitarian law. . . .
Since the turn of the century, the appearance of new means of combat
has — without calling into question the long-standing principles and rules of
international law — rendered necessary some specific prohibitions of the use of
certain weapons. . . .
The cardinal principles constituting the fabric of humanitarian law are [as
follows]. The first is aimed at the protection of the civilian population and
civilian objects and establishes the distinction between combatants and
non-combatants. States must never make civilians the object of attack and must
consequently never use weapons that are incapable of distinguishing between
civilian and military targets. According to the second principle, it is prohibited to
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The Law of War
cause unnecessary suffering to combatants: it is accordingly prohibited to use
weapons causing them such harm or uselessly aggravating their suffering.
[Accordingly,] States do not have unlimited freedom of choice of means in the
weapons they use.
The Court would refer, in relation to these principles, to the Martens Clause . . .
which has proved to be an effective means of addressing the rapid evolution of
military technology. A modern version ... is to be found in Additional Protocol I
ofl977. 138
In conformity with the aforementioned principles, humanitarian law, at a very
early stage, prohibited certain types of weapons either because of their
indiscriminate effect on combatants and civilians or because of unnecessary
suffering caused to combatants, that is to say, a harm greater than that
unavoidable to achieve legitimate military objectives. If an envisaged use of
weapons would not meet the requirements of humanitarian law, a threat to
engage in such use would also be contrary to that law. . . . [T]hese fundamental
rules are to be observed by all States whether or not they have ratified the
conventions that contain them, because they constitute intransgressible
principles of international customary law [ — ? jus cogens — ] ....
Turning now to the applicability of the principles and rules of humanitarian law
to a possible threat or use of nuclear weapons. . . .
The Court shares th[e] view [that] there can be no doubt as to the applicability
of humanitarian law to nuclear weapons. . . . Indeed, nuclear weapons were
invented after most of the principles and rules of humanitarian law applicable in
armed conflicts had already come into existence; the Conferences of 1949 and
1974-1977 [which drew up the Conventions and Protocols] left these weapons
aside, and there is a qualitative as well as a quantitative difference between
nuclear weapons and all conventional arms. However, it cannot be concluded
from this that the established principles and rules of humanitarian law applicable
in armed conflict did not apply to nuclear weapons. Such a conclusion would be
incompatible with the intrinsically humanitarian character of the legal principles
in question which permeates the entire law of armed conflict and applies to all
forms of warfare and to all kinds of weapons, those of the past, those of the
present and those of the future. . . .
Finally, the Court points to the Martens Clause, whose continuing existence and
applicability is not to be doubted, as an affirmation that the principles and rules
of humanitarian law apply to nuclear weapons. . . .
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Although the applicability of the principles and rules of humanitarian law ... to
nuclear weapons is hardly disputed, the conclusions to be drawn from this
applicability are . . . controversial. . . .
[N]one of the States advocating the legality of the use of nuclear weapons under
certain circumstances, including the "clean" use of nuclear, low yield, tactical
nuclear weapons [ — which, in view of their radio-activity, would still be likely to
cause "unnecessary" suffering to combatant victims — ] has indicated what,
supposing such limited use were feasible, would be the precise circumstances
justifying such use; nor whether such limited use would not tend to escalate into
the all-out use of high yield nuclear weapons [ — is this comment of legal
significance? — ]. This being so, the Court does not consider that it has a
sufficient basis for a determination on the validity of this view.
Nor can the Court make a determination upon the validity of the view that the
recourse to nuclear weapons would be illegal in any circumstance owing to their
inherent and total incompatibility with the law applicable in armed conflict.
Certainly, . . . the principles and rules of law applicable in armed conflict — at the
heart of which is the overriding consideration of humanity — make the conduct
of armed hostilities subject to a number of strict requirements. Thus, methods
and means of warfare, which would preclude any distinction between civilian
and military targets, or which would result in unnecessary suffering to
combatants, are prohibited. In view of the unique characteristics of nuclear
weapons . . . the use of such weapons in fact seems scarcely reconcilable with
respect for such requirements. Nevertheless, the Court considers that it does not
have sufficient elements to enable it to conclude with certainty that the use of
nuclear weapons would necessarily be at variance with the principles and rules of
law applicable in armed conflict in any circumstances.
Furthermore, the Court cannot lose sight of the fundamental right of every
State to survival, and thus its right to resort to self-defence, in accordance with
Article 51 of the Charter, when its survival is at stake. 139 Nor can it ignore the
practice referred to as the "policy of deterrence" [ — a legal issue for a
Court? — ] , to which an appreciable section of the international community
adhered for many years. . . .
Accordingly, in view of the present state of international law viewed as a whole . . .
and of the elements of fact at its disposal, the Court is led to observe that it cannot
reach a definitive conclusion as to the legality or illegality of the use of nuclear
weapons by a State in an extreme circumstance of self-defence, in which its very
survival would be at stake. . . . I40
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The Law of War
As if aware of the somewhat unsatisfactory nature of its answers, the Court
referred to the varying views that exist at present on this matter and called for
an early conference to settle the entire issue of legality, reminding the members
o{ the international community of their obligation to negotiate in good faith.
Having thus seen the Court's comments on the legality of the nuclear
weapon and its reference to the absence of mention in the Conventions or
Protocol I, it is perhaps in order to consider the significance of this instrument.
Although both Protocols constitute an annex to the Conventions, they do not
automatically become part thereof and, as such, binding upon Convention
parties. Ratification or accession remains necessary, and there is much debate
as to the extent to which the provisions in Protocol I are declaratory of
customary law relevant to international conflicts and therefore binding
regardless of accession. Perhaps it is sufficient in this connection to refer to the
Report submitted by General Colin Powell to the Defense Department of the
United States in regard to the Gulf War of 1991 in which the Coalition forces
were under his overall command. Many of the combatants in this conflict,
including both Iraq and the United States, had failed to ratify or accede.
Nevertheless, Powell pointed out that to the greatest extent feasible, the
limitations imposed by Protocol I were observed and that "decisions were
impacted by legal considerations at every level. . . . [T]he law of war proved
invaluable in the decision-making process" in regard to action taken. 141 By way
of contrast, Protocol II, as the first international effort to regulate such a
domestic matter as a noninternational conflict, is clearly innovative.
Even though there has, as yet, been no instrument regulating the legality of
the use of nuclear weapons, there has been some progress with regard to
conventional weapons, that is to say those not of massive destruction potential,
although they may in fact be indiscriminatory. Thus, in 1980, a Convention
was adopted on the Prohibition or Restriction on the Use of Certain
Conventional Weapons which may be Deemed to be Excessively Injurious or
Have Indiscriminatory Effects. 142 This comprised three Protocols. The first
prohibits weapons "the primary purpose of which is to injure by fragments
which in the human body escape detection by X-rays," although it is not
believed any such exist or are likely to be invented in the foreseeable future.
Protocol II is concerned with land mines, booby traps and other similar devices,
its main aim being to protect civilians from such weapons, while at the same
time preventing their use against troops in a perfidious manner, as would be the
case if they were used in connection with protective emblems or, for example,
corpses. Finally, Protocol III prohibits or restricts the use of incendiary weapons
if fire is the primary rather than incidental or consequential outcome. While
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incendiaries have become of less significance with the increased resort to
mechanized warfare, particularly when long-distance (as compared with
trench or house-to-house combat), incendiaries remain significant when used
against armored vehicles or aircraft. Consequently, the Protocol excludes from
its purview.
(i) Munitions which may have incidental incendiary effects, such as luminants,
tracers, smoke or signaling systems;
(ii) Munitions designed to combine penetration, blast or fragmentation effects
with an additional incendiary effect, such as armour-piercing projectiles,
fragmentation shells, explosive bombs and similar combined-effects munitions in
which the incendiary effect is not specifically designed to cause burn injury to
persons, but to be used against military objectives, such as armoured vehicles,
aircraft and installations or facilities. 143
This last sub-paragraph leaves one with the impression that the draftsmen were
of opinion that "armoured vehicles, aircraft and installations or facilities" exist
in themselves, without any human being required to make them militarily
effective.
In 1995, a fourth Protocol was added to these three to control the use of
Blinding Laser Weapons. As with incendiaries, the ban is only directed at the
employment of:
[LJaser weapons specifically designed, as their sole combat function or as one of
their combat functions, to cause permanent blindness to unenhanced vision,
that is to the naked eye or to the eye with corrective eyesight devices. . . .
Blinding as an incidental or collateral effect of the legitimate military
employment of laser systems, including laser systems used against optical
equipment, is not covered by the prohibition of this Protocol. 144
Interestingly, this would seem to remove one of the considerations normally
applicable when construing whether an offense has been committed against
the law of war amounting to a war crime. In most cases, it is now accepted that
if an illegal consequence amounting to a breach was "foreseeable or considered
likely," liability would follow. In this case, however, even though it is very likely
that in using laser weapons against optical equipment blindness may well
ensue, such use is not considered to amount to illegality, even though it is
known that this is likely to be the case.
It was pointed out earlier that most of the provisions of the law of war are
only applicable in the event of an international armed conflict, including such
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The Law of War
conflicts as may be considered to be on behalf of self-determination, and that
Article 3 common to the four Geneva Conventions does not really carry this
much further, unless one is able to argue that breach of the various provisions
in that Article amounts to crimes against humanity. The 1977 Additional
Protocol II to the 1949 Conventions sought to provide some measure of
humanitarian principles into noninternational conflicts. However, the
threshold for this Protocol to come into effect is so high that it would exclude
almost every noninternational conflict other than one which amounts to a civil
war with the antigovernment forces in effective control of some part of the
national territory, a requirement which is not imposed in the case of a war for
national liberation:
Art. 1 (1) This Protocol . . . shall apply to all armed conflicts which are not
[elevated by Protocol I into international conflicts] which take place in the
territory of a High Contracting Party between its armed forces and dissident
armed forces or other organized armed groups which, under responsible
command, exercise such control over a part of its territory as to enable them to
carry out sustained and concerted military operations and to implement this
Protocol. 145
As if to emphasize this high threshold and to make it clear that there is no
undue interference with national sovereignty and the power of a government
to deal with opposition and affirm its right to maintain order, the Article
expressly declares that the "Protocol shall not apply to situations of internal
disturbances and tensions, such as riots, isolated and sporadic acts of violence
and other acts of a similar nature, as not being armed conflicts," 146 and, as we
have just seen, nor would it apply, even if the armed incidents were far more
extensive and serious, if those opposing the government were not in control
over part of the national territory. Further limiting the possible impact of the
Protocol on the conflict, Article 2 makes clear that the Protocol cannot:
[B]e invoked for the purpose of affecting the sovereignty of a State or the
responsibility of the government, by all legitimate means, to maintain or
re-establish law and order in the State or to defend the national unity and
territorial integrity of the State . . . [nor] as a justification for intervening, directly
or indirectly, for any reason whatever, in the armed conflict or in the internal or
external affairs of the High Contracting Party in the territory of which that
conflict occurs. 147
While the Protocol makes no attempt to suggest that the decision as to
"legitimate" means of restoring order belongs to any authority other than the
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government concerned, it cannot, despite the ban on intervention, inhibit the
Security Council from deciding, as it has in the case of the former Yugoslavia
and of Rwanda, that the situation is so grievous that it amounts to a threat to
international peace warranting action under Chapter VII of the Charter, and
authorizing action despite the traditional reservations concerning
nonintervention in domestic affairs.
The cheapest and most easily accessible weapon available to those involved
in a noninternational conflict, especially those confronting the governmental
forces, are mines and booby traps, but the 1980 Protocol relevant thereto only
applies in an international armed conflict. However, since mines and booby
traps are so easily made, are relatively inexpensive, and cause extensive injury
to civilians even after the conflict has terminated, when the Convention on
Conventional Weapons was amended in 1993, Protocol II on mines was also
amended. 148 By virtue of this amendment, the Protocol was extended to
situations mentioned in Article 3 common to the four Conventions, that is to
say to noninternational conflicts — although the reservation with regard to
riots and the like was preserved, leaving it open to both combatants in such a
situation to behave as indiscriminately in this regard as might please them.
While the ban is applicable to all parties, the reservations with regard to
sovereignty are also preserved. In an effort to reduce the dangers to civilians,
particularly after the end of hostilities, the amended Protocol contains
carefully spelled-out regulations concerning the marking and identification of
mined areas as well as provision for their ultimate removal. The Protocol does
not ban the use of all mines, but only those which are strictly anti-personnel
and which lack self-destructive, self-neutralizing, or self- deactivating
mechanisms or are fitted with an anti-handling device. While it seeks to limit
the use of these mines, the Protocol does not make the obtaining of such
weaponry illegal, nor forbid their manufacture or supply to those seeking them.
In fact, those countries which are capable of the mass production of mines
tend, at present, to be opposed to any international agreement which will limit
their right to manufacture or use, especially in circumstances of self-defense,
even though they express willingness not to supply them to those countries
seeking them on the international market.
This historical introduction to the law of armed conflict has paid most
attention to warfare upon land since this is the region for which most
agreements have been designed, while the earliest beginnings of regulation
were directed to land warfare. Where it has been considered essential, specific
reference has been made to both aerial and naval warfare, especially since the
principles underlying the laws and customs of warfare on land are general in
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The Law of War
character and equally applicable, to the extent that is practicable, to operations
at sea and in the air as well. Equally, nothing has been said about neutrality.
This is partly due to the fact that in modern war there are few neutrals,
particularly when the States which are neutral are weaker than the belligerents
and therefore have difficulty in asserting their rights against those of the latter.
Moreover, since virtually all States are members of the United Nations and
thus bound to carry out any decisions of the Security Council, 149 and, since no
military action is legal without Security Council consent or approval, it may be
argued that no State can any longer claim to be entitled to the rights
traditionally pertaining to neutrality. This is particularly so when operations
are undertaken to give effect to a Security Council decision, a matter that
became of some importance during the Gulf War of 1991. 15 °
In addition to any international agreements that may be relevant, as pointed
out by the World Court in its opinion on The Threat or Use of Nuclear Weapons ,
the law of armed conflict is still governed by those "principles of international
law derived from established custom [ — going back to feudal times and
before — ] , from the principles of humanity and from the dictates of public
conscience," 151 together with such considerations of proper behavior as
amount to general principles of law recognized by civilized nations 152 and, as
such, rules of international law in accordance with Article 38 of the Statute of
the International Court of Justice. Further, there is nothing to prevent any
State from laying down any rules regulating the conduct of its own forces,
provided they do not run counter to any established rules and customs of the
law of armed conflict, and, as we have seen, breaches of these rules may now be
considered as amounting to crimes against humanity, and punishable as such,
whether the conflict is one that is international or noninternational in
character. Equally, since it is generally accepted that the law concerning armed
conflict is of universal interest, there is nothing to stop any individual State, as
many have in fact done, from passing legislation granting its courts jurisdiction
over breaches of this law regardless of the nationality of the offender or of the
victim. Nor is the geographic location of the offense of any significance. Finally,
as may be seen with the establishment of the ad hoc tribunals for the former
Yugoslavia and Rwanda, it is open to the Security Council, having decided that
a particular conflict, whether international or noninternational, amounts to a
potential threat to international peace, to proceed to establish special courts
with power to enforce the law and punish offenders.
In fine, perhaps it might be suggested that the time is now ripe for a further
effort to be made, perhaps under the auspices of the International Committee
of the Red Cross or the International Law Commission, to draw up a revised
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and up-to-date statement of what the laws, as distinct from the customs of war,
are. 153 If this should be considered impossible or impracticable, perhaps those
States which are of like mind, as for example is the case with the members of
the North Atlantic Treaty Organization or those of the European Community
with the addition of the United States, would work together to draw up an
agreed upon code which will be applicable to their forces and which might
serve as an example to be adopted by others.
Notes
1. See, e.g., comments on Vitoria, in S. JAMES ANAYA, INDIGENOUS PEOPLES IN
INTERNATIONAL LAW 12 (1996).
2. Id. at 13, citing Leo Gross, The Peace of Westphalia, 1648-1948, in INTERNATIONAL
LAW IN THE TWENTIETH CENTURY 25, 33-46 ( Leo Gross ed., 1969).
3. Deuteronomy 20:10-18.
4. See, e.g., 1 Samuel 15, wherein the prophet himself kills Agag.
5. Judges 1:28-32.
6. "Thou shalt not smite them: wouldst thou smite those whom thou hast taken captive
with thy sword and with thy bow? Set bread and water before them, that they may eat and drink
and go to their master. And he [the king] prepared great provision for them: and when they had
eaten and drunk, he sent them away and they went to their master." 2 Kings 6:22-23.
7. Proverbs 25:21.
8. Deuteronomy 20:19-20; see also Exodus 23:29.
9. FLAVIUS JOSEPHUS, CONTRA APION 29 (c. A.D. 93) (William Whiston trans., 1912).
10. Guy B. Roberts, Judaic Sources of and Views on the Laws of War, 37 NAVAL L. REV. 221,
231 (1988).
11. See, e.g., JULIUS STONE, HUMAN LAW AND HUMAN JUSTICE 26-29 (1965).
12. Roberts, supra note 10, at 233.
13. SUN TZU, THE ART OF WAR 78 (c. fourth century B.C.) (Samuel B. Griffiths trans.,
1971).
14. John Keegan, A History of Warfare 173 (1994), citing Herrlee G. Creel, the
Origin of Statecraft in China 257, 265 (1970).
15. Epic Sanskrit poem, based on Hindu ideals, probably composed between A.D. 200 and
300.
16. Cited in W.S. Armour, Customs of Warfare in Ancient India, 7 GROTIUS TRANSACTIONS
71,77,81,(1921).
17. Tit. VII (Georg Buhler trans., 1886) (1976 reprint).
18. Armour, supra note 16, at 74.
19. Sanskrit epic of the third century B.C.
20. Cited by Judge Weeramantry in his dissent in the World Court's advisory opinion on
the Legality of the Threat or Use of Nuclear Weapons, July 8, 1996, General List No. 95, at 34, 35
I.L.M. 809, 897(1996).
21. Cited in Nagendra Singh, The Distinguishable Characteristics of the Concept of Law as it
Developed in Ancient India, in LIBER AMICORUM FOR THE RT. HON. LORD WlLBERFORCE 93
(Maarten Bos & Ian Brownlie eds., 1987).
22. See HOMER, THE ODYSSEY, bk. I, lines 260-3 (Richmond Lattimore trans., 1965).
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The Law of War
23. 2 coleman phillipson, the international law and custom of ancient
Greece and Rome 221-3 (1911).
24. DE OFFICIIS, III, xxii.
25. PHILLIPSON, supra note 23, at 227, 228-9.
26. PHILLIPSON, supra note 23, at 195, 207-9, 210; see also 212 (re the Peloponnesian war) .
27. heraclides 1010.
28. History of the pelepponesian War, 1.1, 1.23, 1-3.
29. "[A]n adult free male could be a hoplite if he could afford the capital investment in the
appropriate arms and armor, and could afford to spend a good part of the summer marching
about the countryside and fighting when called upon to do so. The typical hoplite was an
independent subsistence farmer " Josiah Ober, Classical Greek Times, in THE LAWS OF WAR:
Constraints in Warfare in the Western World 12, 14 (Michael Howard et al. eds.,
1994).
30. Id. at 13.
31. Id. at 18.
32. Robert C. Stacey, The Age of Chivalry, in Howard, supra note 29, at 27, 27-8.
33. Alib Hasan al Muttaqui, 4 Book of Kanzuuuman 472 (c. a.d. 634) (1979
trans, and ed.) see also SHAYBANI SlYAR, THE ISLAMIC LAW OF NATIONS, s. 1 7 1 1 (c. early ninth
century A.D.) (M aj id Khadduri trans., 1966).
34. SlYAR, supra note 33, sees. 29-31, 47, 81, 110-11.
35. Id., sees. 1, 15, 18, 44.
36. Id., sees. 55, 95-109.
37. Concerning the activities of the Courts of Chivalry and other military courts, see
MAURICE H. KEEN, THE LAWS OF WAR IN THE LATE MIDDLE AGES 27, 34 (1965); see also
PHILIPPE CONTAMINE, WAR IN THE MIDDLE AGES 270-7, (Michael Jones trans., 1984), and,
generally, 2 ROBERT P. WARD, AN ENQUIRY IN TO THE FOUNDATIONS AND HISTORY OF THE
LAW OF NATIONS IN EUROPE, ch. XIV (Of the Influence of Chivalry) (1795).
38. See, e.g., the conduct of Henry V at Agincourt in 1415, as commented upon by
Shakespeare, Henry V, Act 4, Scene 5, lines 5-10, based upon Holinshed's CHRONICLES, and
compare with account given by EMERICH VATTEL, LE DROIT DES GENS, liv. Ill, ch.VIII, s. 151
(1758) (Charles G. Fenwick trans., 1916).
39. G.I.A.D. Draper, The Modem Pattern of War Criminality, in WAR CRIMES IN
INTERNATIONAL LAW 141, 142-4 (Yoram Dinstein &Mala Tabory eds., 1996).
40. G.I.A.D. Draper, The Interaction of Christianity and Chivalry in the Historical Development
of the Law of War, 5 INT'L REV. RED CROSS 3, 19 (1965).
41. See E.R.A. SEWTER, THE ALEXIAD OF ANNA COMMENA 316-7 (1969) ("The
crossbow is a weapon of the barbarians ... a truly diabolical machine.").
42. See, e.g., WARD, supra note 37, ch. XIV.
43. Decretal V, cited in PlERINO BELLI, DE RE MILITARI ET BELLO TRACTATUS, pt. VII,
chap. Ill, 29 (1563) (Herbert C. Nutting trans., 1936).
44. Id.
45. DESIDERIUS ERASMUS, BELLUM 17 (1545) (Imprint Soc. ed., 1972).
46. For a discussion on "The Status of Mercenaries in International Law," see LESLIE C.
Green, Essays on the Modern Law of War, ch. IX (1985).
47. James T. Johnson, The Quest for Peace 78-91 (1987).
48. See, e.g., SHAKESPEARE, HENRY V, act 4, scene 7, lines 5-10 (commenting on the
reason for Henry's order at Agincourt to slaughter all the French prisoners, as a reprisal for the
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Leslie C. Green
killing of camp followers); see also, generally, THEODOR MERON, HENRY'S WARS AND
SHAKESPEARE'S LAWS, 1993.
49. See, e.g.., KEEN, supra note 37, at 27; see also, CONT AMINE, supra note 37, at 270-7.
50. See GEORG SCHWARZENBERGER, 2 INTERNATIONAL LAW (THE LAW OF ARMED
CONFLICT), ch. 39 (1968).
51. WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS, app. II, 1412 (1896), citing
Francis Grose, l Antiquities of England and Wales 34 (1773). Similar codes were
issued by Henry V and Henry VIII.
52. Id. at app. Ill, 1416, citing ANIMADVERSIONS OF WARRE (Ward trans., 1639).
53. Charles m. Clode, l Military Forces of the Crown, app. VI (1869).
54. See Andre Gardot, he Droit de la Guerre dans I'Oeuvre des Capitaines Franqais du XVle
Siecle, 72 HAGUE RECUEIL 397, 467-8 (1948).
55. Baron de Taube, cited in id. at 467.
56. Belli, supra note 43, pt. VII, ch. Ill, 34.
57. Geoffrey Butler & Simon MacCoby, The Development of International
LAW 134 (1928).
58. Id. at 187, n.28.
59. Id. at 149-50.
60. Id. at 150-1.
61. THE LAWS OF ARMED CONFLICTS 275 (Dietrich Schindler & Jiri Toman eds., 3d rev.
ed. 1988).
62. Reprinted in id. at 279.
63. See, e.g., CQNTAMINE, supra note 37, at 102-6, 193-207, 211-2.
64. See, e.g., THE GERMAN WAR BOOK 66 Q.H. Morgan ed., 1915). Both the British
MANUAL OF MILITARY LAW, pt. Ill (The Law of Land Warfare), para. 1 10 (1985), and the U.S.
LAW OF LAND WARFARE (FM-27), para. 34 (1956), refer to lances with barbed heads, which
were extremely useful against mounted knights in armor, as unlawful.
65. See, e.g., the Lovet Scouts attached to the British Army.
66. See, e.g., BORDWELL, THE LAW OF WARFARE BETWEEN BELLIGERENTS, ch. IV
(1908) . Bordwell takes the Dutch Wars of Louis XIV, 1672-8, as the dies a quo. See also Leslie C.
Green, Armed Conflict, War and Self Defence, 6 ARCHIV DES VOLKERRECHTS 387, 394-408
(1957).
67. See, e.g., P.P. SHAFIROV, A DISCOURSE CONCERNING THE JUST CAUSES OF THE WAR
BETWEEN SWEDEN AND RUSSIA (1717) (William E. Butler trans., 1973).
68. According to NlCCOLO MACHIAVELLI, 2 THOUGHTS OF A STATESMAN (A. Gilbert
trans., 1989), "that war is just that is necessary."
69. See, e.g., J AMES B. SCOTT, THE CATHOLIC CONCEPTION OF INTERNATIONAL LAW
(1934); see also LESLIE C. GREEN & OLIVE P. DlCKASON, THE LAW OF NATIONS AND THE
NEW WORLD 39-47, 50-4, 192-8 (1989), and ANAYA, supra note 1, ch.l.
70. General Orders No. 100, Apr. 24, 1863, reprinted in Schindler & Toman, supra note 61,
at 3; see also Richard R. Baxter, The First Modem Codification of the Laws of Armed Conflict, 29
int'l Rev. Red Cross 171 (1963).
71. Thomas E. Holland, the Laws of war on Land 72 (1908).
72. Arts. 16, 37, 44 & 47.
73. Reprinted in Schindler & Toman, supra note 61, at 787.
74. Convention I (wounded and sick in the field); II (wounded, sick and shipwrecked); III
(prisoners of war); IV (civilians); Additional Protocol I (international armed conflict);
75
The Law of War
Additional Protocol II (noninternational armed conflict), reprinted in Schindler & Toman, supra
note 61, at 373, 401, 423, 495, 621 & 689 respectively.
75. Reprinted in id. at 101.
76. Reprinted in id. at 25.
77. This reflects a problem facing every effort to enact rules to modify the rigor of war — the
need to compromise between the ideals of the humanitarian and the needs of the military.
78. Reprinted in Schindler & Toman, supra note 61, at 101, 105 & 109 respectively.
79. (1880). Reprinted in id. at 35.
80. Reprinted in id. at 63.
81. Hague Conventions III, VI-XII, V and XIII. Reprinted in id. at 57, 791-940, 941 & 951
respectively.
82. E.g., art. 7, affirming that a detaining government is obliged to maintain prisoners; art.
12, providing that prisoners breaking parole may be punished; art. 22, stating that the means of
injuring the enemy is not unlimited; art. 23, banning the use of poison and of denying quarter;
art. 32, protecting one carrying a flag of truce; etc.
83. See, e.g., the Nuremberg Judgment: "Several of the belligerents in the recent war were not
parties to this Convention [IV] . . . . [B]y 1939 these rules laid down in the Convention were
recognized by all civilized nations, and were regarded as being declaratory of the laws and
customs of war." H.M.S.O., Cmd. 6964 (1946), at 65; 41 AM. J. INTL L. 172, 248-9 (1947).
84. London Charter, reprinted in Schindler & Toman, supra note 61, at 911.
85. See, e.g., U.N.W.C.C, LAW REPORTS OF TRIALS OF WAR CRIMINALS (1947-9).
86. E.g., The Llandovery Castle (1921) in which officers of a U-boat were sentenced by a
German tribunal for, "contrary to international law," firing upon and killing survivors of an
unlawfully torpedoed hospital ship. CAMERON, THE PELEUS TRIAL, app. IX, (1945).
87. E.g., Drierwalde Case (1946), 1 U.N.W.C.C, supra note 85, at 81 [killing captured
RAF personnel contrary to art. 23 (c) ] .
88. See Mue/Zer and Neumann (1921) for cases tried by a German tribunal involving ill
treatment of prisoners of war contrary to the German Penal and Military Penal Codes.
H.M.S.O., Cmd. 1422, at 26, 36.
89. See, e.g., Buhler Trial, Polish Supreme National Tribunal, 14 U.N.W.C.C, supra note
85, at 23 (1948).
90. See UNGA Res. 95(1), Dec. 11, 1946, and Principles of International Law Recognized
in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, 1950 Int'l Law
Comm., reprinted in Schindler & Toman, supra note 61, at 921, 923.
91. Schindler & Toman, supra note 61, at 745.
92. (1976). Reprinted in id. at 163.
93. (1980). Reprinted in id. at 179, 35 I.L.M. 1209, 1217 (1996).
94. (1993). 31 I.L.M. 800 (1993).
95. Reprinted in Schindler & Toman, supra note 61, at 843. See Frits Kalshoven,
Commentary on the Declaration of London, in NATALINO RONZITTI, THE LAW OF NAVAL
WARFARE 257 (1988).
96. See C JOHN COLOMBOS, THE LAW OF PRIZE 25-8 (1949); see also Kalshoven, supra
note 95, at 271.
97. The Astypalia, 31 I.L.R. 519 (1966).
98. Reprinted in Schindler & Toman, supra note 61, at 113.
99. Reprinted in id. at 883.
100. Reprinted in id. at 207.
76
Leslie C, Green
101. Id. See also JAMES M. SPAIGHT, AIR POWER AND WAR RIGHTS 42-3 (1947);
HOWARD LEVIE, 1 THE CODE OF INTERNATIONAL ARMED CONFLICT 207-26 (1985).
102. Shimoda v.Japan, 8 JAP. ANN. INT'LL. 212, 237-8 (1963); 32 1.L.R. 626, 631 (1966).
103. UNITED STATES AIR FORCE, INTERNATIONAL LAW— THE CONDUCT OF ARMED
Conflict and Air Operations (AFP 110-31), para. 5-3(c), (1976).
104. Art. 49(3).
105. Reprinted in Schindler & Toman, supra note 61, at 115.
106. See n. 94 supra.
107. Reprinted in Schindler & Toman, supra note 61, at 339.
108. For Germany's attitude to Soviet prisoners, see Nuremberg Judgment, supra note 83, at
46-8, 91-2; 41 AM. J. INT'L L. 226-9, 282-3 (1947).
109. See HOWARD LEVIE, DOCUMENTS ON PRISONERS OF WAR doc. 191 (1979). For an
account of Japan's treatment of prisoners of war, see, e.g., TOSHIYUKI TANAKA, HIDDEN
HORRORS (1996).
110 Reprinted in Schindler & Toman, supra note 61, at 91 1.
111. Kellogg-Briand Pact, 1928, 94 L.N.T.S. 57.
112 Nurembergjudgment, supra note 83, at (H.M.S.O.) 13, 39-41; 41 AM. J. INT'LL. 218-20,
486-8 (1947).
113 See, e.g., Egon Schwelb, Crimes Against Humanity, 23 BRIT. Y.B. INT'L L. 178 (1945).
114. Here the Commission is reproducing words adopted by Commission of Experts on the
Former Yugoslavia, U.N. Doc. S/1994/674 (1994) at paras. 84-6.
115. U.N. Doc. S/1994/125 (1994) at paras. 113-8.
116. Reprinted in Schindler & Toman, supra note 61, at 231.
117. Res. 95(1), (U.N. GAOR, 5th Sess., Supp. No. 12, Doc A/1316 (1950), reprinted in id. at
921.
118. Reprinted in id. at 923.
119. (1991). 30 I.L.M. 1584(1991).
120. Supra note 74.
121. Id.
122. I - Arts. 49, 50; II -Arts. 50, 51; III - Arts. 129, 130; IV - Arts. 146, 147.
123. Reprinted in Schindler & Toman, supra note 61, at 261.
124. Reprinted in id. at 263.
125. Reprinted in id. at 251.
126. The Distinction Between Military Objectives and Non-Military Objectives, Resolution
adopted by the Institute of International Law, Edinburgh, Sept. 9, 1969, 2 ANNUAIRE
L'INSTITUT DE DROIT INTERNATIONAL 375 (1969), reprinted in Schindler and Toman, supra
note 61, at 265.
127. Letter from General Counsel, Dep't of Defense, to Sen. Edward Kennedy, Chairman,
Subcommittee on Refugees, Committee of Judiciary, Sept. 22, 1972, 67 AM. J. INT'L L. 122
(1973).
128. Supra note 126.
129. Id.
130. G.A. Res. 2675 (XXV), reprinted in Schindler & Toman, supra note 61 ,at 267.
131. See, e.g., Leslie C. Green, Derogation of Human Rights in Emergency Situations, 16 CAN.
Y.B. INT'LL. 92(1978).
132. Reprinted in Schindler & Toman, supra note 61, at 137.
133. 32 I.L.M. 800(1993).
134- Reprinted in Schindler & Toman, supra note 61, at 621 & 689.
77
The Law of War
135. Art. 1(4).
136. Art. 44(3).
137. General List No. 95, July 8, 1996, 35 I.L.M. 809 (1996).
138. "In cases not covered by this Protocol or other international agreements, civilians and
combatants remain under the protection and authority of the principles of humanity and from
the dictates of public conscience." Art. 1, para. 2.
139. "Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence if an armed attack occurs against a Member of the United Nations, until
the Security Council has taken the measures necessary to maintain international peace and
security. . . ."
140. At paras. 74, 75, 76, 78, 79, 85-7, 90, 94 & 95-7.
141. U.S. Dept of Defense, Conduct of the Persian Gulf War App. o (the role of
THE LAW OF WAR), 31 I.L.M. 615 (1992).
142 Reprinted in Schindler & Toman, supra note 61, at 179 (Protocol I at 185; II at 185; III at
190). See William Fenrick, New Developments in the Law Concerning the Use of Conventional
Weapons in Armed Conflict, 19 CAN. Y.B. INT'L L. 229 (1981).
143. Art. 1(b).
144. 35 I.L.M. 1217 (1996).
145. Additional Protocol II, supra note 74, art. 1(1).
146. Id.
147. Id., Art. 2.
148. 35 I.L.M. 1209(1996).
149. U.N. CHARTER Art. 25.
150. See, e.g., Leslie C. Green, The Gulf "War," the UN and the Law of Armed Conflict, 28
ARCHIV DES VOLKERRECHTS 369 (1991).
151. Protocol I, supra note 74, Art. 1(2) (paraphrasing the Martens Clause).
152. See, e.g., charges in the Einsatzgruppen Case (US v. Ohlendorf, 1947). Charge 10 of the
Indictment alleged "acts and conduct . . . which constitute violations of the general principles of
criminal law as derived from the criminal law of all civilized nations." 4 U.N.W.C.C., supra note
85, at 21.
153. See, e.g. ICRC statements: The Soldiers' Rules, INT'L REV. RED CROSS 27 Uan.-Feb.
1978); Fundamental Rules of International Humanitarian Law Applicable to Armed Conflicts, in
Schindler &. Toman, supra note 61, at 734; Non-International Conflicts, INT'L REV. RED CROSS
278 (Sept.- Oct. 1989). All three are reproduced in LESLIE C. GREEN, THE CONTEMPORARY
LAW OF ARMED CONFLICT 335-7 (1993).
78
IV
Shooting Down Drug Traffickers
Phillip A. Johnson
HIS IS THE STORY of how a United States statute, enacted to combat
sabotage of commercial airliners by terrorists, produced the completely
unintended result of shutting down a major element of coalition counterdrug
operations in South America for seven months. It is also the story of how the
United States Government solved that problem, but left unresolved significant
international law issues concerning the use of force against civil aircraft
suspected of drug trafficking.
Coalition Counterdrug Operations
There is no doubt that international drug trafficking causes significant harm
to the United States. Illicit drug use by more than a million U.S. citizens creates
crime and other serious social and public health problems, and the huge illegal
profits generated by illicit drug trafficking present a threat to the integrity of
financial institutions and public officials. As bad as the drug problem may be for
the U.S., it is infinitely worse for the nations where illicit drugs are produced,
processed, and transported. The wealth and extreme violence of drug gangs
have corrupted and intimidated public officials, distorted national economies,
denied the governments of these nations effective control over their borders
Shooting Down Drug Traffickers
and large areas of their territory, and in some cases provided direct support for
armed rebellions.
A number of nations in the Caribbean and in Central and South America,
which together supply much of the illicit drugs entering the U.S., have agreed
to cooperate with the United States in coalition counterdrug operations. With
U.S. support, they have carried out some very significant drug suppression
operations, including crop eradication, destruction of processing facilities,
interference with the supply of precursor chemicals, interruption of
transportation networks, seizure of drugs, confiscation of funds, and arrest,
prosecution, and punishment of offenders. The United States has provided
funds, equipment, training, technical advice, transportation, and intelligence
to the effort. Host nations rely on such support to carry out operations
involving direct confrontation with suspected traffickers, such as arrest,
search, and seizure. Our personnel are limited to a support role out of respect,
in part, for host nation sovereignty, which traditionally carries with it a
monopoly on the exercise of police and military power within its borders. The
restrictions are also a product of a broader policy against involving U.S. military
units in arrests and seizures, whether in foreign nations, on the high seas, or
within U.S. territory. 1
For example, in a number of nations, U.S. military forces have provided and
operated ground-based and aerial radar and communications interception
facilities, the information from which has been supplied to the host nations.
This information has been used to spot suspected drug trafficking flights and
determine their routes and schedules, locate airfields, identify aircraft
(sometimes leading to identification of their crew members and owners), force
aircraft to land or to leave the nation's airspace, or execute an "end-game" in
which host nation police or military forces have carried out raids on airfields
and other facilities. In a statement to Congress on 10 March 1994, the
Department of Defense "drug czar" said that a shift in counterdrug policy
toward operations in the "source nations" would result in increasing this type of
U.S. support to Colombia, Bolivia, and Peru, which were three source nations
who had demonstrated the political will to combat narcotics trafficking. 2
By early 1994, both Colombia and Peru had announced that they intended
to shoot down suspected drug trafficking aircraft whose pilots ignored
directions to land. On 1 May 1994, the United States stopped providing
intelligence to Colombia and Peru concerning suspected drug trafficking
flights. There were reports that the Departments of Defense and State
vehemently disagreed on the wisdom of this action, but there appears to be no
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Phillip A. Johnson
dispute that the reason for this change in policy was centered on issues of
domestic and international law. 3
The Domestic Criminal Law Issue
The U.S. domestic law problem had its origin in the Montreal Convention,
which was concluded 23 September 1971 as a measure to combat terrorism
against civilian airliners. Each contracting State is obligated to either prosecute
or extradite persons found in its territory who are accused of placing bombs on
civil aircraft or of damaging or destroying such aircraft. Under the Montreal
Convention, a State has jurisdiction to prosecute an offender (1) when the
offense was committed in its territory, (2) when the offense was committed
against or on board an aircraft registered in that State, (3) when the aircraft on
board which the offense was committed lands in its territory with the alleged
offender still on board, or (4) when the aircraft was leased to a lessee which has
its permanent place of business in that State. The Convention requires each
Contracting State to make certain offenses punishable under its domestic
criminal law "by severe penalties." 4
In satisfaction of this obligation, and acting partly in reaction to the August
1983 Soviet shoot-down of Korean Air Lines Flight 007 (KAL 007), Congress
enacted the Aircraft Sabotage Act of 1984, which, inter alia, makes it a crime to
damage or destroy a civil aircraft registered in a country other than the United
States. 5 Since 1956 it has been a violation of 18 U.S.C. § 32 to commit similar
acts against aircraft registered or operated in the United States. The material
provisions of the Aircraft Sabotage Act were codified at 18 U.S.C. § 32(b) (2) .
After Peru and Colombia announced their shoot'down policies, officials in
several agencies became concerned that 18 U.S.C. § 32(b)(2) might make
military members and other government officials and employees subject to U.S.
criminal prosecution if they supplied intelligence information or other
assistance to a foreign government knowing that the government concerned
intended to use it to shoot down civil aircraft. Ultimately, the Deputy Attorney
General wrote to the Deputy National Security Adviser that it was
"imperative" to cut off the supply of the radar information. 6 The analysis
underlying this position is stated in a 14 July 1994 memorandum from the
Department of Justice's Office of Legal Counsel, the conclusions of which can
be briefly summarized as follows:
(1) 18 U.S.C. § 32(b)(2) was intended by Congress to apply
extraterritorially. This is clear from its language, from the prior existence of a
separate statute that prohibited similar acts within the territory of the United
81
Shooting Down Drug Traffickers
States, and from the statute's purpose, which was to satisfy U.S. obligations
under the Montreal Convention.
(2) The statute applies to government actors, including law enforcement
officers and military personnel of foreign countries such as Colombia and Peru.
(3) U.S. Government personnel who supply intelligence to another
government with reason to believe it will be used to commit violations of 18
U.S.C. § 32(b) (2) may be subject to prosecution as an aider or abettor under 18
U.S.C. § 2(a) or as a conspirator under 18 U.S.C. § 371.
(4) If a death results, the death penalty or life imprisonment may be
authorized under 18 U.S.C. § 34.
(5) No exemption was provided in the statute for military members or other
U.S. Government officers or employees, or for law enforcement, intelligence,
or national security activities. 7
This concern for the possible criminal liability of U.S. officials, including
military members, seems to have been the primary motivation for the cutoff of
radar generated information on 1 May 1994. The Governments of Peru and
Colombia objected strongly, 8 and the reaction of members of Congress was no
less heated. The chairmen of the House Foreign Affairs Subcommittee on the
Western Hemisphere and of the Subcommittee on International
Security — both members of the President's party — denounced the
Administration's position as "absurd." 9 The Administration's effort to obtain
passage of remedial legislation was greatly hampered by the strongly held
opinion among many Congressmen that 18 U.S.C. § 32(b)(2) was never
intended to apply to coalition counterdrug operations, and that Congress had
more important things to do than to pass a remedial statute to satisfy the
Administration's overcautious approach to the problem. In any event,
however, Congress enacted Section 1012 of the National Defense
Authorization Act for Fiscal Year 1995, 10 which provided for a drug
interdiction exemption once the President makes certain determinations. This
provision is codified at 22 U.S.C. § 2291 — 4, which reads in part:
Official Immunity for authorized employees and agents of the United States
and foreign countries engaged in interdiction of aircraft used in illicit drug
trafficking
(a) Employees and agents of foreign countries
Notwithstanding any other provision of law, it shall not be unlawful for
authorized employees or agents of a foreign country (including members of the
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Phillip A. Johnson
armed forces of that country) to interdict or attempt to interdict an aircraft in
that country's territory or airspace if —
(1) that aircraft is reasonably suspected to be primarily engaged in
illicit drug trafficking; and
(2) the President of the United States, before the interdiction occurs,
has determined with respect to that country that —
(A) interdiction is necessary because of the extraordinary threat
posed by illicit drug trafficking to the national security of that
country; and
(B) the country has appropriate procedures in place to protect
against innocent loss of life in the air and on the ground in
connection with interdiction, which shall at a minimum include
effective means to identify and warn an aircraft before the use of
force directed against the aircraft.
(b) Employees and agents of the United States
Notwithstanding any other provision of law, it shall not be unlawful for
authorized employees or agents of the United States (including members of the
Armed Forces of the United States) to provide assistance for the interdiction
actions of foreign countries authorized under subsection (a) of this section. The
provision of such assistance shall not give rise to any civil action seeking money
damages or any other form of relief against the United States or its employees or
agents (including members of the Armed Forces of the United States) .
On 1 December 1994, the President signed Determination of President No.
95-7, "Resumption of U.S. Drug Interdiction Assistance to the Government of
Colombia," 11 in which he made the necessary determinations under the
statute. On 8 December 1994, a similar determination was signed for Peru. 12
The United States promptly resumed providing radar information to Colombia
and Peru, and it is reported that in 1995 Peru and Colombia seized or destroyed
thirty-nine aircraft carrying drugs, driving drug traffickers to rely almost
exclusively on land and water means of transport in those countries. 13
This seems to be a happy ending, but fans of this legislative fix should take
careful note of its two major limitations, both of which were clearly quite
intentional. First, it does not apply to nations for which the necessary
Presidential determinations have not been made. For example, in May 1995
the Mexican government announced that its military aircraft would be used to
83
Shooting Down Drug Traffickers
"intercept" aircraft suspected of transporting cocaine through Mexican
airspace. 14 Both Mexican policy in this area and U.S. military support for
Mexican counterdrug operations are in their formative phases, and only time
will tell whether Presidential determinations will be sought for Mexico or other
nations. The second major limitation is that the statutory exception applies
only when the aircraft intercepted "is reasonably suspected to be primarily
engaged in illicit drug trafficking." If a host nation uses U.S. intelligence or
other assistance to shoot down civil aircraft for any other purpose, such as
enforcement of other criminal laws, no exception to the application of 18
U.S.C. § 32(b) (2) would appear to be available.
This entire episode demonstrates once again the Iron Law of Unintended
Consequences, as a statute enacted for an indisputably worthy purpose turns
out to have unfortunate and wholly unintended consequences when its plain
language is applied in unforeseen circumstances. 15
International Law Issues
The principal international law issue is the question of when — if
ever — force can be used against civil aircraft. The Chicago Convention of
1944, which established the legal framework for international civil aviation,
contains only one reference to the relationship between State aircraft and civil
aircraft — Article 3 (d) provides that the contracting States must operate their
state aircraft with "due regard" for the safety of civil aircraft. 16 There is strong
support for the view that this provision is merely declarative of customary
international law, but as with most invocations of customary international law,
there have been sharp differences of opinion as to its practical application.
The positions taken by various nations in response to a number of
post- World War II incidents in which scheduled airliners were fired upon
indicate a majority view that there is an international legal obligation not to
use force against civilian airliners in international service, but that this
obligation is subject to the inherent right of self-defense recognized in Article
5 1 of the UN Charter. The right of self-defense, however, is strictly limited by
the principles of necessity and proportionality, and every reasonable
precaution must be exhausted in order to avoid the loss of life. These
precautions include communicating with the aircrew to divert it away from
sensitive areas, escorting it out of national airspace, requiring it to land,
or — as a last resort — firing warning shots. When Bulgaria shot down an El Al
airliner in 1955, Israel shot down a Libyan airliner over the Sinai in 1973, the
Soviet Union crippled a Korean airliner in 1978, and the Soviet Union
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Phillip A. Johnson
destroyed KAL 007 in 1983, their actions were all roundly condemned. In each
case, there appeared to be an international consensus that the actions taken
were not justified as self-defense. 17
The International Civil Aviation Organization (ICAO) was created by the
Chicago Convention to serve as a policy forum for its member nations and as a
mechanism to promote technical cooperation for the conduct of international
civil aviation. After military aircraft of the Soviet Union shot down KAL 007
on 13 August 1983, killing its 269 passengers and crew, the resulting
international outrage led to the unanimous adoption by the 152-member
International Civil Aviation Organization of a new Article 3 bis to the Chicago
Convention, intended to more specifically address the existence of an
international legal obligation to refrain from using force against civil aircraft:
(a) The contracting States recognize that every State must refrain from resorting
to the use of weapons against civil aircraft in flight and that, in case of
interception, the lives of persons on board and the safety of aircraft must not be
endangered. This provision shall not be interpreted as modifying in any way the
rights and obligations of States set forth in the Charter of the United Nations.
(b) The contracting States recognize that every State, in the exercise of its
sovereignty, is entitled to require the landing at some designated airport of a civil
aircraft flying above its territory without authority or if there are reasonable grounds
to conclude that it is being used for any purpose inconsistent with the aims of this
Convention; it may also give such aircraft any other instructions to put an end to
such violations. For this purpose, the contracting States may resort to any means
consistent with relevant rules of international law, including the relevant provisions
of this Convention, specifically paragraph (a) of this Article. Each contracting State
agrees to publish its regulations in force regarding the interception of civil aircraft.
(c) Every civil aircraft shall comply with an order given in conformity with
paragraph (b) of this Article. To this end each contracting State shall establish
all necessary provisions in its national laws or regulations to make such
compliance mandatory for any civil aircraft registered in that State or operated
by an operator who has his principal place of business or permanent residence in
that State. Each contracting State shall make any violation of such applicable
laws or regulations punishable by severe penalties and shall submit the case to its
competent authorities in accordance with its laws or regulations.
(d) Each contracting State shall take appropriate measures to prohibit the deliberate
use of any civil aircraft registered in that State or operated by an operator who has his
principal place of business or permanent residence in that State for any purpose
85
Shooting Down Drug Traffickers
inconsistent with the aims of this Convention. This provision shall not affect
paragraph (a) or derogate from paragraphs (b) and (c) of this Article. 18
The United States has not yet ratified Article 3 bis, and the number of
ratifications is still well short of the 102 needed to bring it into effect.
Nevertheless, there is strong support for the view that it is merely declarative of
existing customary international law. 19
There are two distinctly different views concerning whether or not the
obligation stated in Article 3 bis to refrain from using weapons against civil
aircraft in flight remains subject to a right of self-defense. One view — that the
obligation not to use force is subject to no exception for self-defense — is
expressed in various ICAO publications. ICAO regularly issues a number of
publications that, while not legally binding in themselves, are some evidence of
the member States' understanding of applicable international law. For
example, there is an ICAO publication entitled International Standards — Rules
of the Air (Annex 2 to the Convention on International Civil Aviation). This
publication contains provisions adopted by the ICAO Council from time to
time, acting in a "quasi-legislative function," which creates an expectation that
contracting States will comply within their territories with the standards
approved by the Council unless they file a "difference" concerning particular
rules. 20
Appendix 1 to the Rules of the Air provides standard visual signals for use
when civil aircraft are intercepted by State aircraft. Appendix 2 contains the
following provision, which was added as Amendment 27 to the Rules of the Air
by vote of the ICAO Council on 10 March 1986:
1 . Principles to be observed by States
1.1 To achieve the uniformity in regulations which is necessary for the safety
of navigation of civil aircraft due regard shall be had by Contracting States to the
following principles when developing regulations and administrative directives:
a) interception of civil aircraft will be undertaken only as a last resort;
b) if undertaken, an interception will be limited to determining the
identity of the aircraft, unless it is necessary to return the aircraft to its
planned track, direct it beyond the boundaries of national airspace, guide it
away from a prohibited, restricted or danger area or instruct it to effect a
landing at a designated airdrome;
c) practice interception of civil aircraft will not be undertaken;
86
Phillip A. Johnson
d) navigational guidance and related information will be given to an
intercepted aircraft by radiotelephony, whenever radio contact can be
established, and
e) in the case where an intercepted civil aircraft is required to land in
the territory overflown, the aerodrome designated for the landing is to be
suitable for the safe landing of the aircraft type concerned. 21
This provision has been controversial. The United States and a number of
other members have stated that they consider this action by the ICAO Council
to be ultra vires, in that Article 3(a) of the Chicago Convention states clearly
that the Convention applies only to civil aircraft, and not to state aircraft.
When the Council adopted the language, the U.S. informed the ICAO
Secretary General that it disapproved of Amendment 27 on this basis. The
majority view in the ICAO Council, however, was that the provision in Article
3 (d) , requiring member States to operate their state aircraft with "due regard"
for the safety of civil aircraft, provided authority for the adoption of
Amendment 27. n
Other ICAO publications are prepared by the Secretariat and are only
advisory in nature. Among these are a Manual Concerning Safety Measures
Relating to Military Activities Potentially Hazardous to Civil Aircraft
Operations, 23 and a Manual Concerning Interception of Civil Aircraft. 24 The
latter publication describes in considerable detail the circumstances in which
interception may occur (including a suspicion that an aircraft is transporting
illicit goods) as well as detailed discussions of radio signals, flight plans,
publication of information about restricted areas, position reporting systems,
radar identification, enhancement of visual markings, procedures to be
followed when radio communications fail, procedures for interception, and
related topics. A reminder is included that intercepted aircraft may not
comply with the instructions given by ground controllers or by intercepting
aircraft because of confusion, inability to interpret visual signals correctly,
linguistic misunderstanding of radio messages, hypoxia, or because of inability to
comply due to malfunction, hijacking, or inadequate fuel. Finally, advice is given as
to the action to be taken by the intercepting pilot in the event of noncompliance :
4.1.2.16 In the event that an intercepted aircraft fails to respond to repeated
attempts to convey instructions by visual signals or radiotelephony, the
intercepting aircraft should continue to observe the intercepted aircraft until it
lands or leaves the restricted or prohibited airspace. A full report on the incident
should then be submitted to the appropriate authority to the State of registry for
action (see 2.10, Article 3 bis). 15
87
Shooting Down Drug Traffickers
Any mention of the possibility of firing a weapon at a nonresponsive aircraft
is conspicuously absent from this publication. This is fully consistent with the
published views of the former Director of the ICAO Legal Bureau, Dr. Michael
Milde, who has written that an intercepting aircraft may use reasonable force
to enforce compliance by an intercepted aircraft, but not if it involves the use of
weapons against it. 26 One presumes this means that a display of force, including
the firing of warning shots, forms the outer permissible limit of "reasonable
force," and that weapons fire directed at a noncomplying aircraft will always be
deemed to exceed "reasonable force."
A resolution adopted by the ICAO Council in response to the destruction
by Cuba of two U.S. -registered civil aircraft on 24 February 1996 provides
further support for the view that there is an absolute prohibition against firing
weapons at civil aircraft. The relevant paragraphs are as follows:
THE COUNCIL
2. REAFFIRMS the principle that States must refrain from the use of weapons
against civil aircraft in flight and that, when intercepting civil aircraft, the lives of
persons on board and the safety of the aircraft must not be endangered;
4. REAFFIRMS its condemnation of the use of weapons against civil aircraft in
flight as being incompatible with elementary considerations of humanity, the
rules of customary international law as codified in Article 3 bis of the Convention
on International Civil Aviation, and the Standards and Recommended Practices
set out in the Annexes to the Convention; 27
When they adopted this resolution, the members of the ICAO Council may
have intended to reaffirm the view that the prohibition against using weapons
against civil aircraft is not subject to any exception such as self-defense. On the
other hand, they may have decided the issue of self-defense was not fairly raised
by the facts of the incident, and therefore it need not be discussed. Cuba
maintained that it had acted "in defense of its sovereignty," 28 but it was clear
that the previous acts of the Brothers to the Rescue in Cuban territory, the
most egregious of which apparently consisted of dropping subversive leaflets,
were not much of a threat to Cuban national security. Furthermore, there was
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Phillip A. Johnson
no evidence that the planes that were attacked by Cuba had, during that
particular flight, engaged in such conduct, and they appear to have been
outside of Cuban territorial airspace at the time of the attack.
The view that the obligation to refrain from using force against civil aircraft
is subject to at least one exception — the inherent right of self-defense — is
supported by the broad language of Article 51 of the United Nations Charter 29
and by the second sentence of paragraph (a) of Article 3 his: "This provision
shall not be interpreted as modifying in any way the rights and obligations of
States set forth in the Charter of the United Nations." The sentence appears to
have been added to the text expressly to make it clear that Article 5 1 applies. It
is also interesting to read the various commentaries on the Soviet shootdown of
KAL 007; none of them take the absolute position that there could never be a
right to fire weapons in self-defense against a civil aircraft. Rather, they go to
some lengths to demonstrate that there was no factual basis for any argument
that the shoot-down was necessary, and that obvious alternatives that would
have avoided innocent loss of life were not exhausted. 30
The U.S. statute authorizing assistance to countries who have adopted a
shoot'down policy can be read as relying on the rationale of self-defense. This
view is supported by the requirement that the President find, inter alia, that
there is an "extraordinary threat posed by illicit drug trafficking to the national
security of that country." The international law doctrine of self-defense,
however, does not provide a particularly good fit for the drug shoot-down
problem, for the following reasons:
• First, there has been a long-standing controversy about whether the right
to use force in self-defense can exist in the absence of an armed attack. This
argument usually arises in connection with anticipatory or preemptive
self-defense, but it clearly has considerable force when the issue is whether
force can be used against aircraft that in most cases have not displayed or used
armed force, and are not expected to do so.
• Second, while the drug problem as a whole may pose an extraordinary threat
to the national security of a country, it will probably be hard to argue that any
individual aircraft flight presents the sort of urgent danger that has traditionally
been considered necessary to trigger the right to use force in self-defense. 31
• Third, the offenders typically are not members of the armed forces of
another nation, or even armed agents as envisaged in the term
"state-sponsored terrorism." 32 While drug traffickers have cozy relationships
with the governments of a number of nations, they are not generally operating
as proxies for those governments in the execution of national policy. They are
criminals, not actors, on the international political scene.
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Shooting Down Drug Traffickers
In fact, the law of international civil aviation, including Article 3 bis, will not
apply at all to many shoot-down incidents when the traffickers are nationals of
the nation shooting them down, when their aircraft are not registered in another
nation, and when their flights do not cross national borders. International law
regulates the conduct of nations in their dealings with one another and with each
other's nationals, property, and corporations. With the limited exception of
human rights law, international law does not attempt to regulate a nation's
dealings with its own citizens. The negotiating history of Article 3 bis makes it
quite clear that it is intended to apply only to "foreign aircraft" and not to aircraft
of a state's own registration engaged in purely domestic traffic. 33 For such flights,
the primary law to be applied is the nation's domestic law, including its law
governing the permissible use of force against a fleeing suspected felon. 34 Where
an aircraft does not display any registration number or flag and does not
otherwise communicate any claim to be registered in another nation or to be
engaged in an international flight, it would be hard to quarrel with a presumption
by the local authorities that it is a domestic flight.
It is also clear that foreign civil aircraft are generally subject to the criminal
law of any nation in whose territory they operate. The primary international
law question is -how domestic criminal law can be practically enforced against
foreign aircraft. 35 The ultimate issue becomes whether Article 3 bis and
customary international law prevent law enforcement authorities of a nation
from using weapons against foreign aircraft in its territory even though such use
of force is authorized under its domestic law.
A nation's interests in a law enforcement situation differ markedly from those
involved in a border intrusion. When a nation is primarily concerned with ending
an isolated unauthorized intrusion into its territorial airspace, that interest is
served if the intruder departs. In a drug trafficking situation, the nation's interest in
suppressing persistent drug trafficking is not served by simply escorting individual
aircraft out of its territory, especially if that was the aircraft's intended destination.
Reliance on enforcement actions by the aircraft's state of registry will in most cases
be fruitless. The result may be that the nation concerned may have no practical
enforcement option except to shoot down the suspected drug trafficker. It appears
to this author that an attempt to apply Article 3 bis and customary international
law in a manner that deprives nations of any practical remedy adequately serving
their vital interests is doomed to failure.
The international community should also recognize that the use of force
against civil aircraft involved in drug trafficking does not necessarily threaten
the safety of legitimate civil aviation. Drug traffickers generally operate
unregistered aircraft, or obscure any identifying markings. They typically file no
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Phillip A. Johnson
flight plans, refuse to communicate with ground controllers or intercepting
aircraft, and disregard instructions to land at designated airfields. So long as the
pilot of an innocent aircraft complies with ICAO standards in these areas, it will
be perfectly safe from attack by a nation that follows procedures of the sort
whose existence the President must certify under the U.S. statute. The greatest
contribution of the statute may turn out to be that it requires both the U.S. and
the nations it assists to focus on these precautions.
Accordingly, the most promising approach to understanding the
international law issues raised by the use of weapons against drug trafficking
aircraft appears to be a law enforcement perspective, rather than a self-defense
analysis. If a nation's domestic law permits using force against a suspected drug
trafficking aircraft that refuses to comply with instructions from an
intercepting aircraft, and if it observes rigorous precautions against mistakenly
attacking innocent aircraft, the use of force in these circumstances should be
regarded as legitimate.
In support of this conclusion, one could argue further that the language of
Article 3 bis to the effect that the phrase "This provision shall not be interpreted as
modifying in any way the rights and obligations of States set forth in the Charter of
the United Nations," not only preserves the right of nations to use force in
self-defense, but that it also preserves their immunity from outside interference in
"matters which are essentially within the domestic jurisdiction of any State" as
guaranteed in Article 2 (7) of the Charter. The administration of criminal law
within a nation's borders has traditionally been considered such a matter.
Additionally, there is very little likelihood that a nation adopting a policy of
shooting down drug trafficking aircraft will be subject to serious criticism or
sanctions from the international community. Drug traffickers have no vocal
champions among the family of nations, and the interests of legitimate civil
aviation will not be threatened as long as appropriate precautions are in place.
In fact, there appears to be no record to date that any nation has protested the
shoot-down policies adopted by Peru and Colombia, or the assistance provided
to them by the United States. The only event likely to precipitate such a protest
would be a ghastly mistake in which a planeload of innocents is blown out of
the sky.
Whatever one may think of the urgency of solving the domestic law
issues raised by the U.S. policy of assisting other nations which
shoot down drug trafficking aircraft, they appear to have been solved by the
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Shooting Down Drug Traffickers
1994 statute codified at 22 U.S.C. § 2291-4. The international law issues raised
by a drug shoot-down policy are still unsettled, but such a policy should be
accepted as a legitimate law-enforcement measure so long as rigorous
precautions are in place to prevent the loss of innocent life.
Notes
1. See generally, Chapter 18 of Title 10 U.S.C; Thomas S. M. Tudor & Mark E. Garrard,
The Military and the War on Drugs, 37 AIR FORCE L. REV. 267 (1994).
2. DEFENSE ISSUES, vol. 9, no. 21 (1994) [Prepared statement of Brian E. Sheridan, Deputy
Assistant Secretary of Defense for Drug Enforcement Policy and Support, to the House
Appropriations Defense Subcommittee] .
3. Feud Hurts Bid to Stop Drug Flow, WASH. POST, May 29, 1994, at 1; U.S. Halts Flights in
Andes Drug War Despite Protests, N. Y. TIMES, June 4, 1994, at 1.
4. The Convention for the Suppression of Unlawful Acts Against the Safety of Civil
Aviation (Sabotage), September 23, 1971, 24 U.S.T. 564.
5. 18 U.S.C.A § 32(b) (West Supp. 1996).
6. A.M. Rosenthal, Saving the President, N. Y. TIMES, June 17, 1994, at 31.
7. There was also discussion of possible civil liability for U.S. government agents, either in
U.S. courts or in those of other nations. The remedial statute ultimately passed by Congress
included immunity from civil suit. In addition, there was some concern expressed about whether
the United States wanted to associate itself with law enforcement measures taken by other
governments which would violate the U.S. Constitution when engaged in by U.S. law
enforcement officials within the United States. For example, in Tennessee v. Garner, 471 U.S. 1
(1985), the Supreme Court ruled that the use of deadly force to prevent a criminal suspect's
escape was a violation of the Fourth Amendment unless the law enforcement officer has
probable cause to believe that the suspect poses a threat of serious physical harm, either to the
officer or to others. The U.S. Constitution clearly does not apply to the actions of another
nation's officials within its own territory, but it raises a policy issue for U.S. officials which to this
point has gotten relatively little attention.
8. Lawrence J. Speer, "Incoherent" U.S. Drug Policy Angers S. America, WASH. TIMES, June
23, 1994, at 15.
9. Thomas W. Lippman, U.S. Refusal to Share Intelligence in Drug Fight is Called "Absurd,"
WASH. POST, August 4, 1994, at 12.
10. Pub. L. No. 103-337.
11. 59 Fed. Reg. 64,835(1994).
12. Determination of President No. 95-9, Resumption of U.S. Drug Interdiction Assistance to
the Government of Peru, 59 Fed. Reg. 65,231 (1994).
13. Chris Black, South American Drug Route Targeted, BOSTON GLOBE, June 26, 1996, at 11.
14. Tim Golden, Mexico Plans Bigger Role for Military against Drugs, N. Y. TIMES, May 23,
1995, at 3.
15. As another current example, several U.S. statutes threaten to create problems in the
burgeoning field of information warfare. The U.S. criminal statutes prohibiting interception of
or interference with communications, whose drafters carefully provided exemptions for
criminal investigators and counterintelligence operatives to perform certain acts after
authorization by a court or by specified intelligence officials, contain no exception for other
national security activities. [See, e.g., 47 U.S.C.A. § 333 (West 1991) (Interference with
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Phillip A. Johnson
licensed radio communications); 50 U.S.C. § 1809 (West 1991) (Electronic surveillance of
communications); Electronic Communications Privacy Act 18 U.S.C. A. § 2510-2522 (West
1970 & Supp. 1996).] Another example is 18 U.S.C. § 1367, which makes it a crime to interfere
with the operation of a weather or communications satellite. Once again, an exemption is
provided for "lawfully authorized investigative, protective, or intelligence activity of a law
enforcement agency or of an intelligence agency of the United States," but a broader national
security exception will be needed if U.S. policy makers ever decide to implement meaningful
space control programs. Most readers could probably supply examples of their own.
16. Convention on International Civil Aviation, December 7, 1944, 59 Stat. 1693
[hereinafter Chicago Convention] .
17. For an excellent discussion of post-WW II incidents in which civilian airliners were shot
down by various nations, and the applicable legal principles, see Bernard E. Donahue, Attacks on
Foreign Civil Aircraft Trespassing in National Airspace, 30 AIR FORCE L. REV. 49 (1989).
18. Protocol relating to an Amendment to the Convention on International Civil Aviation,
10 May 1984, ICAO Doc. 9436.
19. Ghislaine Richard, KAL 007: The Legal Fallout, IX ANN. OF AIR & SPACE L. 147 (1984) ;
Michael Milde, Interception of Civil Aircraft vs. Misuse of Civil Aviation, XI ANN. OF AIR & SPACE
L. 105, 113 (1986).
20. Id. at 105-106. Under Article 12 of the Chicago Convention, the standards approved by
the Council are absolutely binding over the high seas.
21. Annex 2 to the Convention on International Civil Aviation, 9th ed., July 1990.
22. Milde, supra note 19, at 114-122.
23. ICAO Document 9554-AN/932, lsted., 1990.
24. ICAO Document 9433-AN/926, 2nd ed., 1990.
25. Id. at 4-5.
26. Milde, supra note 19, at 127.
27. ICAO LIBRARY BULLETIN, July 8, 1996.
28. John M. Goshko, Cuban Aide Defends Air Attack, WASH POST, February 29, 1996, at 16.
29. "Nothing in the present Charter shall impair the inherent right of individual or collective
self-defence if an armed attack occurs against a Member of the United Nations, until the
Security Council has taken measures necessary to maintain international peace and security "
30. See Donahue, supra, note 17; Masukane Mukai, The Use of Force against Civil Aircraft:
The Legal Aspects of Joint International Actions, XIX-II ANN. OF AIR & SPACE L. 567, 569
(1994).
3 1 . For an excellent discussion of the international law of self-defense, see, Timothy Guiden,
Defending America s Cambodian Incursion, 11 ARIZ. J. INT. &COMP. L. 215 (1994).
32. For an excellent discussion of right to use force in response to state-sponsored terrorism,
see, Richard J. Erickson, Legitimate use of Military Force Against
State-Sponsored International Terrorism (1989).
33. Milde, supra note 19.
34. It is beyond the scope of this article to pursue the question of what limitations on the use
of force against fleeing felons — if any — are imposed by international human rights law.
35. Milde, supra note 19, at 123-124.
93
V
War Crimes
Howard S. Levie
HE BIBLE IS REPLETE WITH EXAMPLES of what today we would
consider to be war crimes against humanity, but which in Biblical days
were common and accepted acts of war. Many statements similar to the
following will be found in the Bible:
Thus we put to death all the men, women, and dependents in every city, as we
did to Sihon King of Heshbon. All the cattle and spoil from the cities we took as
booty for ourselves. 1
You shall put all its males to the sword, but you may take the women, the
dependents, and the cattle for yourselves, and plunder everything else in the
city. 2
That such actions were typical of the time demonstrates the distance that
constraints on war have traveled over the past two millenia.
Probably one of the earliest war crimes trials of which we have knowledge is
the so-called "Breisach Trial," the trial of Peter von Hagenbach by a
multinational tribunal in 1474. An area of the Upper Rhine, including the
town of Breisach, was pledged to the Duke of Burgundy by the Archduke of
Austria to guarantee a debt. As the Military Governor appointed by the Duke
War Crimes
of Burgundy, von Hagenbach instituted a brutal policy that included "murder,
rape, illegal taxation and wanton confiscation of private property" against the
citizens of Breisach and of the surrounding area. Eventually, von Hagenbach
was seized by revolting German mercenaries and the citizens of Breisach and
tried by a tribunal consisting of twenty-eight judges, eight from Breisach and
two from each of the other Alsatian, German, and Swiss towns affected. His
defense was "superior orders" — that he was merely complying with the orders
of his master, the Duke of Burgundy. He was found guilty, deprived of his
knighthood, and executed. Although his acts had been committed before the
actual outbreak of war, the occupation of Breisach resembled a wartime
occupation, and his offenses would now be considered to have been war
crimes. 3
There were, undoubtedly, war crimes trials conducted in the succeeding
centuries, 4 but we find little documentation in that regard. However, in Dejure
Belli Ac Pads Libri Tres, published in 1625, Hugo Grotius said:
The fact must be recognized that kings, and those who possess rights equal to
those kings, have the right of demanding punishment not only on account of
injuries committed against themselves or their subjects, but also on account of
injuries which do not directly affect them but excessively violate the law of
nature or of nations in regard to any persons whatsoever. 5
In effect, Grotius was saying that any sovereign had the right to try violators of
the law of war even though neither he nor his subjects were the victims of the
illegal act — the doctrine of universal jurisdiction over war crimes. 6
During the American Civil War (1861-1865), the so-called Lieber Code,
issued by the Union Army in 1863 as General Orders No. 100, contained the
following provision:
59. A prisoner of war remains answerable for his crimes committed against the
captor's army or people, committed before he was captured, and for which he has
not been punished by his own authorities. 7
After the war's end, the Federal authorities tried a number of former
Confederates for war crimes committed during the hostilities. 8
Several decades later, during the Philippines "pacification" program that
followed the Spanish- American War (1898), war crimes were committed by
both sides. The United States Army tried not only guerrillas who had violated
the law of war, 9 but also members of its own Army who had done likewise. 10
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Howard S. Levie
In and after the Boer War (1899-1902), the British army tried several war
crimes cases, cases involving both its own personnel and personnel of the
enemy. The 1902 Treaty of Vereeniging, which ended that conflict, provided:
IV. No proceedings, civil or criminal, will be taken against any of the burghers so
surrendering or so returning for any acts in connection with the prosecution of
the war. The benefits of this clause will not extend to certain acts contrary to the usage
of war which have been notified by the Commander-in-Chief to the Boer generals and
which shall be tried by court-martial immediately after the close of hostilities. 11
While hostilities were ongoing, the British tried three Australian officers of its
army for war crimes; after the war, a Boer who had misused a white flag was
tried.
During World War I (1914-1918), violations of the law of war, war crimes,
were committed and trials were conducted by both sides. One case which
caused a furor in Great Britain was the trial, conviction, and execution by
Germany of Charles Fryatt, captain of the British merchant vessel S.S. Brussels.
At the outbreak of the war the British Admiralty had instructed all merchant
captains that if approached by a German submarine on the surface, they were
to try to ram it. This happened to Captain Fryatt, who saved his ship by
attempting to ram the submarine which was then forced to depart. A year later
the Brussels was captured by German surface vessels. Captain Fryatt was tried
as having been an illegal combatant. His defense was that he had obeyed the
order of his government. He was convicted and executed. At the time, the
British termed this "judicial murder." As we shall see, the decision of the
German court is now accepted international law.
One article of the Treaty of Versailles, which ended World War I, provided
for the trial of the ex-Kaiser of Germany by an international court "for a
supreme offense against international morality and the sanctity of treaties." 12
Today, we would probably designate that offense as falling within the term
"Crimes against Peace." He was never tried because he had sought and
obtained asylum in The Netherlands, which refused to extradite him despite
demands by both France and the United Kingdom. The Treaty also provided
for the surrender, to the former Allies for trial, of individuals alleged to have
committed war crimes during the course of the hostilities. For political reasons,
the Allies eventually agreed that such trials should be conducted by the
Supreme Court of Leipzig. 13 After a dozen cases had been tried at the behest of
Belgium, France, and the United Kingdom, most of which resulted in either
unwarranted acquittals or grossly inadequate sentences, the Allies ceased
sending cases to the German court. This experience demonstrated that the
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War Crimes
trial by enemy courts of war crimes allegedly committed by members of the
enemy armed forces or civilian population against members of the armed
forces, civilian population, or property of the victors was not a viable solution
to the problem, and that more just results could be obtained in the courts of the
victors. 14
There were, however, two cases tried by the Supreme Court of Leipzig which
are worthy of mention. Believing that the British were using their hospital
ships, normally exempt from attack, for military purposes, the German
Admiralty announced that such vessels must follow certain prescribed routes;
if they were found in a barred route, they would be subject to attack. Finding
the British hospital ship Dover Castle outside the prescribed routes, a German
submarine sank it without warning. When the submarine commander was tried
by the Supreme Court of Leipzig, his defense was that he had complied with the
orders of his Government and his superiors. Despite the decision in the Fryatt
Case, which had held that compliance with an order of one's government was
no defense, he was acquitted. 15
The second case of interest also involved a British hospital ship, the
Llandovery Castle. While sailing across the Atlantic from Canada to Great
Britain, it was sighted by a German submarine. For some unknown reason, the
German submarine commander decided that it was carrying American aviators
and torpedoed it. When survivors in life boats were interrogated, it became
clear that the only persons who had been aboard were Canadian medical
personnel and the crew. In order to cover up his crime, the German captain
and two of his officers proceeded to machine-gun the lifeboats. One lifeboat
escaped destruction and so the incident became known. At the end of the war,
the captain disappeared, but his two officers were brought to trial. Their
defense was "superior orders." In this case, the Court held that while
compliance with the orders of a superior was normally a good defense, that was
not so where, as here, "the order is universally known to everybody, including
the accused, to be without any doubt whatever against the law." The accused
were found to be guilty of a war crime. 16
In 1928, the "Pact of Paris," also known as the "Kellogg-Briand Pact" after
its progenitors, and technically known as the International Treaty for the
Renunciation of War as an Instrument of National Policy, was drafted. It was
accepted by forty-four States, including all of the then-major Powers except the
Soviet Union. This Pact provided:
Article 1. The High Contracting Parties solemnly declare in the names of their
respective peoples that they condemn recourse to war for the solution of
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Howard S. hevie
international controversies, and renounce it as an instrument of national policy
in their relations with one another.
Article 2. The High Contracting Parties agree that the settlement or solution of
all disputes or conflicts of whatever nature or of whatever origin they may be,
which may arise between them, shall never be sought except by pacific means. 17
During the course of World War II numerous statements were made by the
members of the Allied Powers to the effect that upon the conclusion of
hostilities there would be trials of those who had violated the law of war,
including those who were responsible for the initiation of the war. Then, on 13
January 1942, nine of the countries at war with Germany signed the
Declaration of St. James. 18 The relevant provisions of that Declaration stated
the signatories:
Recalling that international law, and in particular the Convention signed at
The Hague in 1907 regarding the laws and customs of land warfare, does not
permit belligerents in occupied countries to commit acts of violence against
civilians, to disregard the laws in force, or to overthrow national institutions,
(1) affirm that acts of violence thus inflicted on the civilian populations have
nothing in common with the conception of an act of war or a political crime as
understood by civilised nations,
(3) place among their principal war aims the punishment, through the
channel of organised justice, of those guilty of or responsible for these crimes,
whether they have ordered them, perpetrated them or participated in them. 19
In addition, numerous official pronouncements to the same general effect were
made by individual countries and by the Heads of State. 20 On 20 October 1943,
a conference at the British Foreign Office resulted in the establishment of the
United Nations Commission for the Investigation of War Crimes (this title was
later changed to the United Nations War Crimes Commission); with the
exception of the Soviet Union, all of the European Allies, and China were
represented. 21
Germany surrendered in May 1945, but even before then discussions had
been entered into concerning the manner in which the punishment of the
European war criminals was to be accomplished. From the beginning, the
United States favored trials for all alleged war criminals, including the leaders.
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War Crimes
The Soviet Union also favored a judicial solution to the problem. The United
Kingdom originally favored a political solution for the leaders, citing the
difficulties of a trial by an international court, but ultimately agreed to a trial.
At the Yalta Conference in February 1945, the decision was made that there
would be a trial. The following May, at the organizing meeting for the United
Nations in San Francisco, the United States circulated a draft proposal for such
a trial to the representatives of the Provisional Government of France, the
Soviet Union, and the United Kingdom. Supreme Court Associate Justice
Robert Jackson was named as Chief Counsel for the United States by President
Truman and immediately began conferring with all concerned. On 25 June
1945 a conference of the four major Powers opened in London. They signed an
Agreement to which was attached a Charter of the International Military
Tribunal (IMT) on 8 August 1945. 22 Justice Jackson had offered Nuremberg, in
the American Zone of Occupation, as a suitable place for the trial and this offer
was accepted. 23
The Charter of the International Military Tribunal listed the offenses within
its jurisdiction, some of which were later alleged to be ex post facto. The offenses
listed were: (1) crimes against peace; (2) war crimes; (3) crimes against
humanity; (4) conspiracy to commit any of the foregoing; and (5) membership
by the accused in an organization determined to be criminal. There was no
provision for appeal, the decision of the Tribunal being final.
Two other provisions of the Charter of the IMT are worthy of mention. First,
contrary to prior general custom, but in accordance with the provision o{ the
Treaty of Versailles for the trial of the ex-Kaiser, the Charter provided:
Article 7. The official position of defendants, whether as Heads of State or
responsible officials in Government Departments, shall not be considered as
freeing them from responsibility or mitigating punishment.
Second, following the decision of the German court in the case of Captain
Charles Fryatt, the Charter provided:
Article 8. The fact that the Defendant acted pursuant to order of his government
or of a superior shall not free him from responsibility, but may be considered in
mitigation of punishment if the Tribunal determines that justice so requires. 24
The International Military Tribunal consisted of one judge and one
alternate from each of the four countries. With each State participant having a
Chief Counsel of equal rank, the prosecution could only act by agreement.
After some difficulties, twenty-four individuals were indicted 25 and, on 18
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Howard S. Levie
October 1945, arraigned in Berlin. The trial itself took place at Nuremberg
from 30 November 1945 to 31 August 1946, with judgment delivered on 1
November 1946. Twelve accused received death sentences; three received
sentences to imprisonment for life; four received sentences to
imprisonment for specified terms; and three were acquitted. 26 The decision
of the Tribunal was unanimous except that the Soviet judge dissented from
the acquittals, the failure to adjudge the death sentence against Rudolph
Hess, and the findings that several organizations were not criminal in
nature. 27
It was argued that "crimes against peace" had not been an international
offense and that, therefore, it was improper to charge the accused with this
offense. The Tribunal found that, in view of the Kellogg-Briand Pact, the
making of aggressive war was a war crime which had existed before the
outbreak of World War II and that the accused could, therefore, be guilty of
the offense of having committed a crime against peace. 28
When the Tribunal found that several of the Nazi organizations, such as the
SS, the SD, and the Gestapo, were criminal in nature, that meant that every
member of that organization was guilty of a war crime unless he could prove
that he had not known of its criminal nature when he joined it and that he
personally had never participated in its criminal activities. Inasmuch as the
membership in these organizations numbered in the tens of thousands, the task
of trying them was obviously beyond the resources of the Allied Powers.
Accordingly, this chore was turned over to the German courts, which tried
many thousands of these cases. 29
The trial by the International Military Tribunal was only the tip of the
iceberg. The Allied Control Council, the central authority for the four zones of
occupation, enacted a law intended to bring some uniformity into the war
crimes prosecution programs of the four zones of occupation of Germany. The
Military Governor of the United States Zone of Occupation promulgated an
implementing law. Under this law, the United States tried twelve cases, known
colloquially as the "Subsequent Proceedings," involving 185 high-ranking
government, military, and industrial personnel (of whom 35 were acquitted
and 24 received death sentences); 30 and, under general international law,
United States military commissions sitting in Dachau (a former Nazi
concentration camp) tried 1,062 accused (of whom 256 were acquitted and
426 received death sentences). 31 The last two World War II war crimes trials
conducted in Europe were both tried in French courts. In 1987, Klaus Barbie,
who had been the head of the Gestapo in Lyons during the war and who was
responsible for many deportations of Jews and executions, was deported from
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War Crimes
Bolivia where he had taken refuge and where a previous government had
denied extradition. He was convicted of crimes against humanity and
sentenced to imprisonment for life. (He died in prison in 1991.) Then, in 1994,
Paul Touvier, a Frenchman who had headed a branch of the Milice, the French
police organization which supported (and sometimes outdid!) the Nazi
Gestapo, and who had remained hidden in France for all those years, was tried
for the execution of seven Jews in retaliation for the assassination of Philippe
Henriot, a rabid pro-Nazi Frenchman. (It was not alleged that the Jewish
victims had any connection with the assassination.) Touvier was found guilty
of a crime against humanity and sentenced to life imprisonment.
Meanwhile, somewhat similar war crimes trials programs were being
conducted in the Far East. An International Military Tribunal for the Far East
had been established by a proclamation issued by General Douglas MacArthur,
the Supreme Commander for the Allied Powers. Its Charter was very much
similar to that of the International Military Tribunal except that it consisted of
eleven judges (one from each of the countries which had signed the Japanese
surrender agreement and one each from India and the Philippines), and
General MacArthur retained a right of review. Moreover, there was only one
chief prosecutor (an American) and an assistant prosector from each of the
other participating countries. The main question was whether the Emperor
would be named as an accused. It was finally decided that he would not be
among the accused, primarily because such action would have made the
occupation so much more difficult because of the regard in which he was held
by the Japanese people. There were originally twenty-eight accused, but two
died during the trial and one was found to be incompetent to stand trial. The
accused were arraigned in Tokyo on 3-4 May 1946, and the trial proper ran
from 3 June 1946 until 16 April 1948. The reading of the judgment did not
begin until 4 November 1948 and ended on 12 November. In addition to the
judgment of the Tribunal, there was one separate opinion, one concurring
opinion, and three dissenting opinions. There were seven death sentences, 32
sixteen sentences to imprisonment for life, one to imprisonment for twenty
years, and one to imprisonment for seven years. 33
Here, too, there was a multitude of trials by military commissions. The
United States tried cases in Manila, Yokohama, Kwajalein, Guam, and China.
Additionally, the United Kingdom, France, China, Australia, the Netherlands
East India, and the Soviet Union all tried war crimes cases in the Far East. 34
As would be expected, in addition to the claim of ex post facto, there were a
number of legal problems presented in the prosecution of all of these war
crimes. Probably the provision which caused the most dispute was that relating
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Howard S. Levie
to the receipt of evidence. Article 19 of the Charter of the International
Military Tribunal stated:
The Tribunal shall not be bound by technical rules of evidence. It shall adopt and
apply to the greatest possible extent expeditious and nontechnical procedure
and shall admit any evidence which it deems to have probative value.
The charters for the other Tribunals and military commissions all had identical
or similar provisions. American lawyers, accustomed to the stringent technical
rules of evidence applicable in the common law system, often argued that this
was unfair to the accused. They overlooked the facts that civil law countries,
which do not have these technical rules of evidence, were equally involved and
that the circumstances of war crimes trials are such that victims and witnesses
may be thousands of miles away in their home countries by the time of trial.
Accordingly, the full application of the common law rules of evidence would
have made many trials impossible. In order to ensure fairness, the Tribunal
adopted the rule that affidavits would be admissible, but that the opposing
party could challenge the affidavit and demand the production of the affiant as
a live witness. Strange to relate, in the only statistics available on the subject, in
the first seven trials of the "Subsequent Proceedings," the prosecution offered
291 affidavits while the defense offered 3,098. The prosecution challenged 40
of the defense affidavits while the defense challenged 84 of the prosecution
affidavits (64 of the latter challenges were in one case!). 35
When the Secretary-General of the United Nations drafted a proposed
Statute for an International Tribunal for the Prosecution of Persons for Serious
Violations of the International Humanitarian Law Committed in the Territory
of the Former Yugoslavia since 1991, a Statute that was approved without
change by the Security Council, Article 15 thereof provided that the Judges of
the Tribunal could adopt rules for the admission of evidence. 36 The Judges of
the International Tribunal adopted Rule 89(C), which provides that "A
Chamber may admit any relevant evidence which it deems to have probative
value;" and Rule 89(D) which provides that "A Chamber may exclude
evidence if its probative value is substantially outweighed by the need to ensure
a fair trial." 37
The fact that the action charged as a war crime had been performed
pursuant to the order of a superior was advanced in almost every case.
Frequently the evidence established the validity of the claim. Under Article 8
of the Charter, quoted above, and its equivalent in other war crimes laws and
regulations, this was not a defense. However, in such cases where the accused
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War Crimes
was found to be guilty, his sentence would frequently be considerably
mitigated.
When the International Law Commission formulated the principles of the
Charter and judgment of the IMT, its Principles 3 and 4 paralleled Articles 7
and 8 of the Charter. Nevertheless, in every case where the denial of the
defense of "superior orders" has been proposed for inclusion in law of war
conventions drafted since World War II, the proposal has been rejected. 38
However, the Secretary-General did include such a provision denying the
"defense" in the Statutes he prepared for the International Tribunals for the
Former Yugoslavia and for Rwanda, and the Security Council retained them. 39
Similarly, the Code of Conduct on Politico- Military Aspects of Security,
adopted by the Conference on Security and Cooperation in Europe, includes
the following provisions:
30. Each participating State will instruct its armed forces personnel in
international humanitarian law, rules, conventions and commitments governing
armed conflict and will ensure that such personnel are aware that they are
individually accountable under national and international law for their actions.
31. The participating States will ensure that armed forces personnel vested
with command authority exercise it in accordance with relevant national as well
as international law and are made aware that they can be held individually
accountable under those laws for the unlawful exercise of such authority and
that orders contrary to national and international law must not be given. The
responsibility of superiors does not exempt subordinates from any of their individual
responsibilities*
The responsibility of the commander for the issuance of illegal orders and for
violations of the law of war by his subordinates has also been a major problem.
This question arose early in the war crimes program after World War II when
Japanese General Tomoyuki Yamashita was tried in Manila in October 1945,
charged with the responsibility for innumerable violations of the law of war
committed by his troops during the battles for the recovery of the Philippine
Islands by the United States. His defense was that he took no action to
terminate these war crimes and punish the offenders, because he was unaware
of the fact that they were being committed. What the military commission
which tried him, and the boards and courts which reviewed the case on appeal,
held was, in effect, that when a commander knew, or should have known, that
troops under his command were committing war crimes, he had a duty to end
such actions and to punish the perpetrators. 41
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Howard S. Levie
The responsibilities of the commander for violations of the 1949 Geneva
Convention 42 and of the 1977 Additional Protocol I 43 are now set forth in
Articles 86(2) and 87 of the latter. They provide:
Article 86. Failure to act
2. The fact that a breach of the Conventions or of this Protocol was
committed by a subordinate does not absolve his superiors from penal or
disciplinary responsibility, as the case may be, if they knew, or had information
which should have enabled them to conclude in the circumstances at the time,
that he was committing or was going to commit such a breach and if they did not
take all feasible measures within their power to prevent or repress the breach.
Article 87. Duty of Commanders
1 . The High Contracting Parties and the Parties to the conflict shall require
military commanders, with respect to members of the armed forces under their
command and other persons under their control, to prevent and, where
necessary, to suppress and to report to competent authorities breaches of the
Conventions and of this Protocol.
2. In order to prevent and suppress breaches, High Contracting Parties and
Parties to the conflict shall require that, commensurate with their level of
responsibility, commanders ensure that members of the armed forces under their
command are aware of their obligations under the Conventions and this
Protocol.
3. The High Contracting Parties and the Parties to the conflict shall require
any commander who is aware that subordinates or other persons under his
control are going to commit or have committed a breach of the Conventions or
of this Protocol, to initiate such steps as are necessary to prevent such violations
of the Conventions or this Protocol, and, where appropriate, to initiate
disciplinary or penal action against violators thereof.
The International Tribunal for the Former Yugoslavia, mentioned above,
was the first tribunal for the trial of war crimes not established by the victor or
victors. Its judges are elected by the United Nations. Composed of two Trial
Chambers of three judges each and an Appeals Chamber of five judges, it is the
first war crimes court in which there is a right of appeal. In the Tadic Case, the
accused challenged the jurisdiction of the Tribunal, but the Appeals Chamber
determined that it was properly established and did have jurisdiction to try
cases involving violations of the law of war which had occurred in the former
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War Crimes
Yugoslavia. At the time of this writing, although the International Tribunal for
the Former Yugoslavia has now been in existence for four years, it has tried only
two cases. In the Erdemovic Case there was a guilty plea. (The defendant has
filed an appeal based on the ground that his ten-year sentence is too severe!) In
1997, the Appeals Chamber decided the Tadic Case on the merits, convicting
the accused.
In 1994 the United Nations Security Council adopted Resolution 955
establishing a similar Tribunal to try genocide and other war crimes committed
in Rwanda or in neighboring States by Rwandan citizens. The Statute for this
Tribunal is identical, mutatis mutandis, to that of the Tribunal for the Former
Yugoslavia. The Appeals Chamber already established will function for both
Tribunals.
For many years the International Law Commission has been charged with
the task of drafting a Statute for an International Criminal Court. In a Draft
Statute prepared in 1993, the jurisdiction of the Court included, among others,
the crimes of genocide and grave breaches of the four 1949 Geneva
Conventions and 1977 Additional Protocol I. 44 It would also have jurisdiction
over crimes of aggression where the Security Council of the United Nations
"has first determined that the State concerned has committed the act of
aggression which is the subject of the charge." 45 The Draft Statute is still in an
embryonic stage. It was the subject of the work of a preparatory committee and,
unless there are developments to the contrary, a diplomatic conference will be
convened in 1998 to draft a convention establishing an international criminal
court. 46
The most recent action of the United States in this area occurred on 21
August 1996 when the President approved the "War Crimes Act of 1996." 47 It
provides:
§2401. War crimes
(a) OFFENSE. Whoever, whether inside or outside the United States,
commits a grave breach of the Geneva Conventions, in any of the circumstances
described in subsection (b), shall be fined under this title or imprisoned for life or
any term of years, or both, and if death results to the victim, shall also be subject
to the penalty of death.
(b) CIRCUMSTANCES. The circumstances referred to in subsection (a) are
that the person committing such breach or the victim of such breach is a member
of the Armed Forces of the United States or a national of the United States (as
denned in section 101 of the Immigration and Nationality Act).
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Howard S. Levie
(c) DEFINITIONS. As used in this section, the term "grave breach of the
Geneva Conventions" means conduct defined as a grave breach in any of the
international conventions relating to the laws of warfare signed at Geneva 12
August 1949 or any protocol to any such convention, to which the United States
is a party.
Heretofore, when a nation tried one of its own personnel for a violation of
the law of war such as a grave breach of one of the 1949 Geneva Conventions,
as in the Calley Case, it has not been considered to be a war crimes case,
although, in fact, that was what it was. Insofar as the United States is
concerned, such a trial will, in the future, unquestionably be a war crimes case.
Apparently, Congress did not consider it necessary to include the commission
of such offenses by non-nationals of the United States, whether committed
against American or foreign personnel. There can be no doubt that they are
already war crimes within the jurisdiction of the United States.
On 19 October 1996, the President approved an Act which includes the
following provision:
§ 2. Sense of The Congress.
It is the sense of the Congress that United States Government agencies in
possession of records about individuals who are alleged to have committed Nazi
war crimes should make these records public. 48
This Act was considered necessary because of the overly strict construction
that many government agencies are following in application of the Freedom of
Information Act.
The laws against war crimes, like all penal laws, have two purposes: 1) to
discourage their commission; and 2) to punish offenders. During the past
half-century the international community has failed in both of these areas. The
rare possibility of trial after the termination of hostilities does not greatly
discourage the commission of further offenses during the course of hostilities;
the complete failure to punish individuals for the commission of war crimes
even after the termination of hostilities certainly does not discourage their
commission in the next conflict that occurs. 49 It remains to be seen whether the
action of the Security Council of the United Nations in the Former Yugoslavia
and in Rwanda, and the possible creation of an International Criminal Court,
will have any lasting effect. 50
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War Crimes
Notes
1. Deuteronomy 4:6-7.
2. Id. at 20:14. See also Numbers 31:7-12; 1 Samuel 15:3; etc. For similar as well as contrary
rules in other civilizations, see the Introduction to 1 THE LAW OF WAR: A DOCUMENTARY
HISTORY 3 (Leon Friedman ed., 1972).
3. 2 Georg Schwarzenberger, International Law (Armed Conflict) 462-466
(1968).
4. The same author lists several events which might be considered to be war crimes trials in
earlier years in Georg Schwarzenberger, The Judgment of Nuremberg, 21 TUL. L. REV. 329 (1947).
5. Vol. II (Classics of International Law, Francis W. Kelsey trans., 1984), at 504.
6. The Treaty of Westphalia, 1 Consol. T.S. 319, 1 MAJOR PEACE TREATIES OF MODERN
HISTORY, 1648-1967, at 7 (Fred L. Israel ed., 1967), which ended the Thirty Years' War in 1648,
included the following provision:
II
That there shall be on the one side and the other a perpetual Oblivion, Amnesty, or
Pardon of all that has been committed since the beginning of these Troubles, in what
place, or what manner soever the Hostilitys have been practis'd, in such a manner, that
nobody, under any pretext whatsoever, shall practice any Acts of Hostility, entertain any
Enmity, or cause any trouble to each other; . . . That they shall not act, or permit to be
acted, any wrong or injury to any whatsoever; but that all that has pass'd on the one side,
and the other, as well before as during the War, in Words, Writings, and Outrageous
Actions, in Violences, Hostilitys, Damages and Expences, without any respect to Persons
or Things, shall be entirely abolished in such a manner that all that might be demanded of,
or pretended to, by each other on that behalf, shall be bury'd in eternal Oblivion.
This certainly appears to be a recognition and waiver by both sides of the violations of the law of
war committed by the other.
7. THE LAWS OF ARMED CONFLICT 3, 12 (Dietrich Schindler & Jiri Toman eds., 3d ed.
1988)
8. United States v. Henry Wirz, 8 Amer. St. Trials 657 (1918) (Wirz was charged with
maltreatment of Union prisoners of war in the Andersonville, Georgia, prisoner-of-war camp. He
was convicted and executed); U.S. v. James W. Duncan, MILITARY LAW AND PRECEDENTS
791-792 (William Winthrop ed., 1886; 2d ed. 1920) (Duncan was one of Wirz's civilian
assistants. He was convicted and sentenced to imprisonment for fifteen years); U.S. v. Major
John H. Gee, id. at 792 n. 28 (He was tried for the maltreatment of Union prisoners of war at
another Confederate prisoner-of-war camp. He was acquitted) ; United States v. T.E. Hogg et al.,
8 RECORDS OF THE REBELLION, Series II, 674 (Several members of the Confederate armed
forces boarded an American merchant vessel in civilian clothes with the intention of taking it
over and using it as a Confederate commerce raider. They were convicted and sentenced to
death, but their sentences were commuted to imprisonment); etc.
9. U.S. v. Braganza et al., cited in Willard Cowles, Universality of Jurisdiction over War Crimes,
33 CAL. L. REV. 177, 211 (1945); U.S. v. Versosa et al., id. at 210; etc.
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Howard S. Levie
10. U.S. v. Brig. Gen. Jacob A. Smith, reprinted in Friedman, supra note 2, at 799; U.S. v.
Major Edwin F. Glenn, reprinted in id. at 814; United States v. Lt. Preston Brown, reprinted in id.
at 820; etc.
11. 2 Israel, supra note 6, at 1145, 1146 (emphasis added).
12. 2T.I.A.S.,at43, 136 (Charles Bevans ed., 1969); 13 AM.J.lNT'LL. (Supp.) 151 (1919).
13. The Allies had originally submitted a list of about 890 names of individuals wanted for
trial, including the Crown Prince, General von Hindenburg, Admiral von Tirpitz, and many
other former leaders of Germany. The list submitted to the Supreme Court of Leipzig contained
only 45 names.
14- One of the most vehement opponents of this conclusion was himself tried and acquitted in
the so-called I.G. Farben Case (U.S. v. Carl Krauch). See VON KNIERIEM, THE NUREMBERG
TRIALS (1959) . The fairness of the trial was rarely an issue raised by the accused. The one case in
which this might be said to have become a major issue was In re Yamashita, 327 U.S. 1 (1946),
discussed below.
15.16 AM. J. INT'L L. 704 (1922) , 2 ANN. DIG. 429 (1922) . This decision was probably based
upon a finding that, under the circumstances, the order of the German Admiralty was a legal
order.
1.6. 16 AM. J. INT'L L. 708 (1922); 2 ANN. DIG. 436 (1922).
17. 46 Stat. 2343, 94 L.N.T.S. 57, 22 AM.J.lNT'LL. (Supp.) 171 (1928), 128B.F.S.P.447.
18. The group which initiated this action was then known as the Inter- Allied Conference on
the Punishment of War Crimes. The name was later changed to the Inter- Allied Commission on
the Punishment of War Crimes.
19. It is reproduced in THE HISTORY OF THE UNITED NATIONS WAR CRIMES
COMMISSION AND THE DEVELOPMENT OF THE LAWS OF WAR 90 (1948) .
20. The most important of these Declarations was probably that made at Moscow by Prime
Minister Churchill, President Roosevelt, and Marshal Stalin in November 1943. Id. at 107.
21. The Soviet Union was not represented because it had demanded that seven of its
constituent Republics, which were actively engaged in the war, each be represented, a demand
which had not been met. Id. at 112. The United Nations War Crimes Commission functioned
until 1948, receiving trial records from its member nations, many of which were published with a
discussion of the applicable law in a 15-volume set of books, UNITED NATIONS WAR CRIMES
Commission, Law Reports of Trials of War Criminals (1947-49).
22. Nineteen other nations subsequently adhered to the London Agreement.
23. The history of the negotiations that culminated in the 1945 London Agreement and the
Charter of the International Military Tribunal is recorded in REPORT OF ROBERT H. JACKSON,
United States Representative to The International Conference on Military
TRIALS, Department of State Publication 3080 (1949).
24. 59 Stat. 1544, 82 U.N.T.S. 279, 3 Bevans 1240. The comparable provisions of the
Charter of the International Military Tribunal for the Far East state:
Article 7. Neither the official position, at any time, of an accused, nor the fact that an
accused acted pursuant to order of his government or of a superior shall, of itself, be
sufficient to free such accused from responsibility for any crime for which he is charged,
but such circumstances may be considered in mitigation of punishment if the Tribunal
determines that justice so requires.
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War Crimes
T.I.A.S. 1589, 4 Bevans 27. It will be noted that here, unlike the London Charter, the fact that
the accused complied with an order of his Government may be considered in mitigation of
punishment.
25. One accused was found to be incompetent, another committed suicide, and a third,
Martin Bormann, was tried in absentia, so there were actually twenty-one accused present in
Court. (Although Bormann was not present in Court, he was represented by defense counsel.)
26. The three who were acquitted soon found themselves facing German courts, where all
three were convicted of having violated German law!
27. One accused, Hermann Goering, committed suicide before he could be hung. He and
those who were executed were all cremated and their ashes spread to the winds. With the
exception of Hess, the others, including those with life sentences, either died or were released
prior to the expiration of their sentences. The Soviet Union refused to agree to Hess' release.
When he died (or committed suicide) in 1987, he was the only major war criminal still
imprisoned in Spandau Prison in Berlin.
28. After years of debate in the League of Nations and in the United Nations, in 1974 the
General Assembly of the United Nations adopted a resolution in which one paragraph
specifically provides that "A war of aggression is a crime against international law." G.A. Res.
3314 (XXIX), Dec. 14, 1974, 13 I.L.M. 710, 714 (1974).
29. The Allied authorities considered that by assigning the task to the German courts, they
would determine the extent of their de-Nazification. Since these cases were, for the most part,
trials of Germans for offenses committed against other Germans, they were not then considered
to be war crimes trials.
30. Each of these twelve trials was conducted by three American judges, usually borrowed
from state courts. The I.G. Farben Case, referred to supra, in note 14 was Case No. 6 of these
cases.
31. The great majority of these cases fell into three categories: lynching of downed Allied
airmen, concentration camp personnel, and acts of euthanasia. During this period, the British
tried 1,085 accused in their zone, of whom 348 were acquitted and 240 received the death
sentence; France tried 2,107 accused, of whom 404 were acquitted and 104 received death
sentences; and the Soviet Union tried 14,240 accused of whom 142 were acquitted and 138
received death sentences. (The statistics provided by the Soviet Union are not generally
accepted. There were 66 death sentences in just 9 cases recorded by the United Nations War
Crimes Commission. United Nations Archives, UNWCC, Reel 36.)
32. Unlike the procedure followed in Germany, the ashes of the individuals who were
sentenced to death were preserved and are now buried in what is considered to be a shrine!
33. The individual who received the seven year sentence was Maroru Shigemitsu. Like the
others, he received an early release from confinement and four years later he was the Foreign
Minister of Japan!
34. Strange to relate, although the Soviet Union was in the war for less than a week, it tried
several thousand war crimes cases and still held Japanese as war crimes prisoners in 1955, long
after all the other countries had caused the release of their prisoners.
35. HOWARDLEVIE,TERRORISMINWAR:THELAWOFWARCRIMES260n.l31 (1994).
36. U.N.Doc. S/25704, May 1, 1993, 32 I.L.M. 1192, 1196 (1993).
37. U.N. Doc. IT/32, March 14, 1994, 33 I.L.M. 484, 533 (1994).
38. See Howard Levie, The Rise and Fall of an Internationally Codified Denial of the Defense of
Superior Orders, 30 REVUE DE DROIT MlLITAIRE ET DE DROIT DE LA GUERRE 184 (1991),
reprinted in LEVIE ON THE LAW OF WAR (Michael N. Schmitt & Leslie C. Green eds., 1998)
[forthcoming] . Many nations have provisions in their civil penal law that make compliance with
110
Howard S. Levie
the orders of a superior a defense. This is probably a major reason for their objection to denying it
to the military. Moreover, the national representatives at Diplomatic Conferences probably fear,
with reason, that military discipline would be adversely affected, as it might cause a subordinate
to refuse to obey an order that is legitimate but which the subordinate believes to be illegal.
39. The provisions of the Statute for the International Tribunal for the Former Yugoslavia
frequently follow the London Charter. Thus, its Article 7 states:
Article 7: Individual Criminal Responsibilities
1. A person who planned, instigated, ordered, committed or otherwise aided and
abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of
the present Statute, shall be individually responsible for the crime.
2. The official position of any accused person, whether as Head of State or
Government or as a responsible Government official, shall not relieve such person of
criminal responsibility nor mitigate punishment.
3. The fact that anyone of the acts referred to in articles 2 to 5 of the present statute
were committed by a subordinate does not relieve his superior of criminal responsibility if
he knew or had reason to know that the subordinate was about to commit such acts or had
done so and the superior failed to take the necessary and reasonable measures to prevent
such acts or to punish the perpetrators thereof.
4. The fact that an accused person acted pursuant to an order of a Government or of a
superior shall not relieve him of criminal responsibility, but may be considered in
mitigation of punishment, if the International Tribunal determines that justice so
requires.
40. 12 TERRORISM: DOCUMENTS OF INTERNATIONAL AND LOCAL CONTROL 7, 11
(Howard Levie ed., 1997).
41. This case ultimately reached the United States Supreme Court which, in In re
Yamashita, 327 U.S. 1 (1946), sustained the conviction by a vote of six to two.
42. 1949 Geneva Conventions relative to the Protection of Victims of War, 6 U.S.T.
3114/3217/3316/3516, T.I.A.S. Nos. 3362/3363/3364/3365, 75 U.N.T.S. 31/85/135/287, 157
B.F.S.P. 234/262/284/355.
43. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (Protocol I), 72 AM. J. INT'L L. 457
(1978); 16 I.L.M. 1391 (1977). To date the United States has not ratified this Protocol.
44. U.N. GAOR, 48th Sess., Supp. No. 10 (A48/10), at 255 (1993), 33 I.L.M. 253 (1994)
(art. 22, at 264; art. 23, at 268; and art. 26 at 268). The Commission has also long engaged in the
task of preparing a Draft Code of Crimes Against the Peace and Security of Mankind. Article 20
of the 1996 draft, entitled "War Crimes," is quite complete in its coverage of both customary and
conventional war crimes. U.N. GAOR, 51st Sess., Supp No. 19, U.N.Doc. A/51/10 (1996); 91
AM. J. INT'L L. 365, 369(1997).
45. Art. 27, 33 I.L.M. 270 (1994). The overall provisions proposed for jurisdiction are far
from satisfactory.
Ill
War Crimes
46. G.A. Res. 51/207, Dec. 17, 1996, 36 I.L.M. 510 (1997). Much as he favors the
establishment of such a Court, the present writer is not optimistic that States, particularly the
United States, will ratify such a Convention.
47. Pub. L. No. 104-192, 110 Stat. 2104, 18 U.S.C. 2401.
48. Pub. L. No. 104-309, 110 Stat. 3815.
49. The United Nations Command was prepared to try about 200 individuals for war crimes
committed during the Korean War (1950-1953). No trials took place because of the provisions
of the Armistice Agreement requiring the repatriation of any prisoner of war who so desired.
During the conflict in Vietnam, the United States tried a number of its own personnel [see
United States v. Calley, 46 CMR 1131 (1973), affd 48 CMR 19 (1973), habeas corpus granted,
382 F. Supp. 650 (1974), rev'd 519 F. 2d 184 (1975), cert. den. 425 U.S. 911 (1976)]. See also
Gary I. Sous, Son Thang.- an American War Crime (1997). It tried none of the enemy
despite criminal acts such as the shooting of two innocent American prisoners of war as a reprisal
for the trial and execution by the South Vietnamese of a terrorist bomber caught in the act.
50. In Kadic v. Karadzic, 70 F. 3d 232 (2d Cir. 1995), cert, denied, 116 S. Ct. 2542 (1996) 34
I.L.M. 1595 (1995), the United States Circuit Court, Second Circuit, held that under the Alien
Tort Act of 1789 and the Torture Victim Protection Act of 1991 [106 Stat. 73 (1992), 28 U.S.C.
1350 note (Supp. V, 1993)], civil suit could be brought in United States Courts against the
perpetrators of genocide, war crimes, and crimes against humanity in foreign countries by the
victims or their representatives where service of process was accomplished in the United States.
112
The U.S. Freedom of Navigation Program:
Policy, Procedure, and Future
Dennis Mandsager
HE U.S. FREEDOM OF NAVIGATION (FON) PROGRAM has, for
nearly two decades, repeatedly demonstrated its utility in furthering U.S.
national interest in maintaining freedom of navigation and overflight on, over,
and under the oceans. Indeed, other maritime nations should consider adoption
of such a program, either unilaterally or cooperatively with the United States, in
order to ensure the stable and predictable law of the sea regime that facilitates
effective naval operations. This article analyzes the FON Program, with a focus
on the operational assertions of navigation and overflight rights by U.S. military
ships and aircraft. 1
The FON Program seeks to encourage coastal States to conform their ocean
claims to international law through peaceful exercise of navigation and
overflight rights in ocean areas where such States have made excessive or
illegal maritime claims. The program, which began in 1979, is a joint effort
of the Department of Defense (DoD) and the Department of State
(DoS). 2 It operates on three levels: operational assertions, or FON
operations, by military units; diplomatic protests of excessive claims or other
diplomatic representations by the DoS; and DoS/DoD consultations with
representatives of other States in an effort to promote stability and consistency
The US. Freedom of Navigation Program
in the law of the sea. 3 Since 1979, over 100 diplomatic protests have been filed
and over 300 operational assertions have been conducted. 4
Legal Divisions of the Sea
To grasp the relationship between excessive claims and FON assertions, it
is first necessary to understand the legal divisions of the sea and of navigation
and overflight rights in its various zones. 5 All maritime zones are measured
from "baselines." Baselines normally follow the low-water mark along the
coast. In very limited geographic situations, such as deeply indented
coastlines, a series of straight baselines may be employed by connecting
appropriate points.
All waters inside baselines are internal waters, where the coastal State
exercises near absolute sovereignty. Except in limited distress situations,
foreign ships and aircraft must have permission to enter internal waters.
Immediately beyond the baselines lies the territorial sea, which may extend
seaward to a maximum of 12 nautical miles. Coastal State sovereignty in this
area is subject to the right of innocent passage, i.e., continuous and
expeditious surface transit through it. Aircraft overflight and submerged
passage in territorial waters are not permitted, without coastal State
permission. When transiting in or over territorial seas that are part of an
international strait, ships and aircraft may engage in continuous and
expeditious transit passage in their "normal mode." For example, formation
steaming, flight operations, and submerged transits are permitted when in
transit passage.
A special regime exists for archipelagoes. Archipelagic, or island, nations
may draw baselines which connect their islands, subject to certain limitations,
and create sovereign archipelagic waters. These waters are subject to the right
of archipelagic sea-lanes passage (essentially the same as transit passage) in all
routes normally used for international navigation or overflight and in sea-lanes
designated by the archipelagic State. Innocent passage applies in archipelagic
waters outside these and normal routes.
All waters seaward of the territorial sea are international waters where the
ships and aircraft of all States enjoy the high seas freedoms of navigation and
overflight. 6 International waters include the contiguous zone, exclusive
economic zone (EEZ), and high seas. A State may enforce customs, fiscal,
immigration, and sanitary laws in a contiguous zone, which may extend as far as
24 miles from the baseline. It may also exercise sovereignty over resources on
its continental shelf and in its EEZ. The EEZ may extend to 200 miles from the
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Dennis Mandsager
baseline, whereas the continental shelf extends to between 200 and 350 miles,
depending in its topography. Subject to the resource-related rights of the
coastal State, the freedoms of navigation and overflight in the EEZ, or above
the continental shelf where it extends beyond 200 miles are the same as on the
high seas. Other than the aforementioned rights, coastal States do not exercise
sovereignty over international waters.
Excessive Claims and International Law
As a maritime nation, the national security of the United States depends in
great part on the ability to exercise the freedoms of navigation and overflight in
and over the world's oceans. Coastal States often assert maritime claims of
sovereignty, jurisdiction, or other rights that are inconsistent with
international law. These excessive claims attempt to restrict the United States'
ability, to exercise its rights at sea, including the conducting of military exercises
and operations. Examples of excessive claims include:
• Territorial sea claims in excess of 12 nautical miles
• Exclusive economic zone claims that purport to restrict military exercises
• Improperly drawn straight baselines that purport to convert territorial sea
areas or international waters (EEZ or high seas) into internal waters, or
international waters into territorial waters
• Claims requiring advance notification or permission for innocent passage
of warships through the territorial sea
• Archipelagic claims that do not permit archipelagic sea-lane passage in
all normal routes of navigation or overflight
• Territorial sea claims in international straits that do not permit transit
passage, including overflight of military aircraft or submerged or surface
transits, without prior notice
• Security zones in international waters that exclude or restrict entry by
warships and military aircraft. 7
The FON Program's response to excessive claims is based on fundamental
international law principles. If maritime nations acquiesce in an excessive
claim by failing to exercise their rights, then the claims may eventually be
considered to have been accepted as binding law. Examples of change in the
law of the sea through acquiescence include the extension of the territorial sea
from three nautical miles to twelve, and general acceptance of the EEZ. Given
the normative import of acquiescence, both diplomatic protests and the
exercise of rights are necessary to preserve operating freedoms. 8
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The US. Freedom of Navigation Program
Military Strategy and U.S. Interests
In the post-Cold War era, the U.S. strategic focus has shifted from a global
threat to new challenges. Nevertheless, key elements of our traditional military
strategy — forward presence and a crisis response capability — continue to
apply. In National Military Strategy, 9 the principal threats to America's security
are described as regional dangers (potential conflicts among States),
asymmetric challenges (unconventional challenges using means the U.S.
cannot match in kind, such as terrorism), transnational threats (emergencies,
extremism, ethnic disputes, crime, illegal trade, and other challenges), and
wild cards (future developments). It further describes four strategic concepts
that govern the use of U.S. forces to meet the demands of the environment:
strategic agility, the timely employment and sustainment of military power;
overseas presence, the visible posture of U.S. forces in or near key regions;
power projection, the ability to rapidly deploy and sustain forces; and decisive
force, the commitment of sufficient military power to achieve the right
resolution. Each depends on the traditional freedoms of navigation and
overflight in and over international waters, international straits, and
archipelagic sea-lanes, as well as innocent passage through territorial seas and
archipelagic waters. Without freedom of navigation, the ability of the United
States to project military power, provide logistics support, maintain forward
presence, and accomplish missions such as disaster relief, humanitarian
assistance, and noncombatant evacuations, will be severely hampered. U.S.
strategy requires the ability to move forces quickly and without the advance
permission of coastal States through the Straits of Singapore, Malacca, Bab el
Mandeb, Hormuz, and Gibraltar, the Philippine and Indonesian sea-lanes, and
other key areas. Transit must include surface navigation o{ warships,
submerged submarine transit, and air transit by military aircraft.
Generally, it is in the best interests of both coastal and maritime States that
the coastal State not be faced with a decision as to whether or not to permit
transits. For example, after certain NATO allies denied permission to cross
their land territory in April 1986, U.S. military aircraft overflew the Strait o(
Gibraltar to conduct air strikes against targets in Libya in response to a
Libyan-sponsored terrorist attack on U.S. military personnel. The coastal
States — Spain and Morocco, in particular — were not required to "vote" on the
propriety of the self-defense mission by consenting (or not consenting) to
transit passage through their territorial seas within the Strait of Gibraltar.
Similarly, during Operations Desert Shield and Desert Storm, the right of
116
Dennis Mandsager
transit passage enabled U.S. and Coalition forces to transit the straits of Bab el
Mandeb and Hormuz without formal coastal State authorization.
An example from National Security and the Convention on the Law of the Sea 10
demonstrates the importance of mobility in the movement of a conventionally
powered, six-ship carrier battle group from Yokosuka, Japan, to the Persian
Gulf. If transit through the Strait of Malacca, the Indonesian archipelago, and
the Torres Strait were denied, rerouting around Australia would be necessary.
This would delay the arrival of the battle group by sixteen days and result in
$2.9 million additional fuel costs. 11 Albeit unlikely, the scenario offers a clear
and specific picture of the potential monetary and opportunity costs of mobility
restrictions.
In addition to transit rights, traditional high seas freedoms underlie the
ability to conduct robust naval operations. For instance, they permit military
forces to engage in flight operations, exercises, surveillance and intelligence
activities, and weapons testing. Other lawful uses of the oceans important to
U.S. military interests, albeit not directly related to navigation, include laying
submarine cables, hydrographic surveys, telecommunications activities, and
the collection of marine weather and oceanographic data.
In sum, an effective forward defense requires that U.S. forces be available
when and where needed to respond to commitments and to preserve the
integrity of an alliance or coalition. This position is reflected in U.S. Navy and
Marines Corps service doctrine. In . . . From the Sea, the Chief of Naval
Operations and the Commandant of the Marines Corps have stated:
Naval expeditionary Forces are: . . . [u]nrestricted by the need for transit or
overflight approval from foreign governments in order to enter the scene of
action. The international respect for freedom of the seas guarantees legal access
up to the territorial waters of all coastal countries of the world. This affords Naval
Forces the unique capability to provide peaceful presence in ambiguous
situations before a crisis erupts. 12
In addition to military uses, the United States has myriad other diverse and
vital interests in the oceans. Guaranteed access to resources within the high
seas, in the exclusive economic zone, and on the continental shelf foster
economic well-being. Resource management and environmental protection
are key elements in preserving these resources. The scientific community
depends on its freedom to conduct marine scientific research. Of course, the
U.S. relies heavily on commercial sea-lanes as the trade routes. Disruptions in
the flow of commerce have the potential for devastating effects on the global
economy.
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The US* Freedom of Navigation Program
U.S. Oceans Policy and the Law of the Sea Convention
The 1982 United Nations Convention on the Law of the Sea (LOS
Convention) is central to U.S. oceans policy and the FON Program, for it
provides a detailed framework for use of the oceans. 13 In particular, the
Convention specifies the maximum breadth of each maritime zone and the
rights and duties therein, defines the standards for establishing baselines,
guarantees freedom of navigation and overflight on, under, and over
international waters, and codifies the rights of innocent passage, transit
passage, and archipelagic sea-lanes passage for both commercial and military
users.
In 1982, President Ronald Reagan announced that the United States would
not sign the LOS Convention due to objections to various deep seabed mining
provisions in Part XL 14 The next year, the President issued an ocean policy
statement in which he declared that the U.S. would comply with the
non-seabed mining provisions of the Convention because they "generally
confirm existing maritime law and practice and fairly balance the interests of all
states." 15 He also announced that the U.S. would "exercise and assert its
navigation and overflight rights and freedoms on a worldwide basis . . .
consistent with . . . the Convention . . . [but] will not . . . acquiesce in unilateral
acts of other States designed to restrict the rights and freedoms of the
international community in navigation and overflight and other related high
seas uses." 16 This statement reaffirmed the Freedom of Navigation Program,
which had existed since 1979.
In 1994, Secretary of Defense Les Aspin repeated the central oceans policy
theme when he stated that "[t]he armed forces continue to be the instrument
for the United States to exercise and assert its navigation and overflight rights
and freedoms consistent with the 1982 Law of the Sea Convention." Secretary
Aspin further stated that "it is necessary for maritime nations ... to protest
excessive claims through diplomatic channels and to exercise their navigation
and overflight rights in the disputed regions. The United States has accepted
this responsibility as an important tenet of national policy. Therefore, the
Department of Defense maintains an active Freedom of Navigation
Program." 17
Secretary of Defense William Perry reiterated this view in 1994: "[t]he
nation's security has depended upon our ability to conduct military operations
over, under, and on the oceans. We support the [1982 LOS] Convention
because it confirms traditional high seas freedoms of navigation and overflight;
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Dennis Mandsager
it details passage rights through international straits; and it reduces prospects
for disagreements with coastal states during operations." 18
The LOS Convention came into force for its parties on November 16, 1994.
Fortunately, earlier in 1994, UN-sponsored negotiations had resulted in an
agreement that reforms the deep seabed mining provisions of the LOS
Convention to address longstanding objections of the U.S. and other
industrialized nations. 19 Removal of those objections has opened the way for
U.S. acceptance of the LOS Convention. In October 1994, the President
transmitted the Convention and the U.N. -sponsored agreement to the Senate
for its advice and consent. 20
In 1997, Secretary of Defense William Cohen reiterated the theme of
previous administrations and Secretaries: "The LOS Convention . . . establishes
rules . . . regarding freedoms of navigation and overflight essential for
maintaining the global mobility, presence, and readiness of U.S. armed forces
The United States . . . has much to gain by becoming a party." 21 He further stated
that "despite positive developments in the law of the sea, it remains necessary for
maritime nations, like the United States, to protest excessive claims . . . through
diplomatic channels and to exercise . . . rights in disputed areas. The . . . Freedom
of Navigation Program has challenged excessive claims to counter any argument
that such claims are valid due to acquiescence over time." 22
On balance, U.S. oceans policy has been effective. United States forces
generally have operated consistent with the LOS Convention without
significant repercussion. Most criticism of U.S. operations is based on a
misunderstanding of the nature of the operations. For example, military
surveys in an EEZ — a high seas freedom — sometimes are mistaken for marine
scientific research, which is subject to coastal State consent. Another common
misunderstanding results when a coastal State observes a military aircraft or
warship apparently violating its territorial seas when it is actually transiting an
international strait in a transit passage mode. When queried as to its purpose,
the aircraft or ship responds with a simple explanation, such as: "This is a U.S.
Navy aircraft in transit passage." The response generally satisfies all concerned.
The success of the existing policy, however, does not mean that U.S.
military strategy is best served by the U.S. remaining a non-party to a
comprehensive, widely accepted convention governing the world's oceans. On
the contrary, the 1982 LOS Convention reflects not only existing custom, but
fairly balances the competing interests of coastal and maritime States. The
Convention provides a solid framework for environmental protection, and
enhances the ability to study and to protect the marine environment. By
becoming a party, the U.S. will be in a better position to influence law of the sea
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The US* Freedom of Navigation Program
developments in related fora, such as the International Maritime Organization
(IMO) and regional fishing organizations. Moreover, universal adherence
promises stability and predictability for the movement of commercial cargo,
while guaranteeing, through its EEZ provisions, coastal state control of
economic activity off its shores.
As to the FON Program, a widely accepted Convention should, over time,
reduce its stressors, for States will be far less likely to make or enforce ocean
claims beyond those permitted by its provisions. After all, treaties are more
stable than customary international law, which is often vague, difficult to
enforce, and malleable. The rules are easier to identify than with customary
law's constant evolution through claim and counterclaim. (Indeed, the U.S.
position that the LOS Convention represents customary law has been
questioned by some nations.) In addition, the Convention provides more detail
and clarity than customary law. The listing of activities permitted and not
permitted during innocent passage is one of many examples.
Ultimately, the Convention regime provides the best avenue to order and
stability in the law of the sea. Its navigation and overflight provisions provide a
solid oceans framework for the execution of military strategy and a clear legal
framework for the execution of the FON Program, while its dispute resolution
mechanism is generally less politically and practically costly than confrontation
or acquiescence.
Freedom of Navigation Operations in Practice
FON assertions are directed in operation orders that specify procedures and
approval authority for the commander. The orders generally delineate when
the participating ship or aircraft will enter and exit the area o( the excessive
claim and when the unit will enter and exit the U.S. -recognized territorial sea
or other ocean zone involved in the assertion. FON assertion tracks are then
plotted on charts and reviewed for accuracy by navigation specialists.
Operation orders may also provide detailed guidance on how to respond to
coastal State queries concerning the ship's or aircraft's presence.
Rules of engagement (ROE) provide guidance on the use of force in
self-defense in the unlikely event a coastal State responds by force to the assertion.
Intelligence estimates of threats, to which the ROE are tailored, are included in
the order. The DoD Maritime Claims Reference Manual provides commanders a
detailed listing of the maritime claims of all coastal nations. 23 The Manual also
lists many instances in which the United States has protested excessive claims
or conducted operational assertions against them. Particularly useful is The
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Dennis Mandsager
Commander s Handbook on the Law of Naval Operations, 24 which provides
commanders and staffs a ready reference concerning the legal divisions of
oceans and airspace and the corresponding rights and duties of the coastal and
other States therein.
Effective operations require comprehensive training and a multidisciplinary
approach. Fleet units must conduct routine training and exercises that include
law of the sea and rules of engagement concepts to ensure compliance with
international law and U.S. oceans policy. Thereafter, operators, planners,
intelligence specialists, and legal advisors must work together to ensure that
operations are conducted in an efficient, effective, and safe manner, consistent
with international law.
To document the operation, each unit provides an after-action report to
superiors in the chain of command. Subsequently, the Secretary of Defense
publishes an unclassified annual report of assertions conducted during the previous
fiscal year. 25 It is this listing which places the international community on notice of
U.S. actions demonstrating non-U.S. acquiescence in excessive claims.
With diplomatic protests of excessive claims, one might query why
operational assertions are needed at all. After all, in strict legal terms, timely
diplomatic protests might suffice to protect against technical legal
acquiescence in an illegal claim. Nevertheless, there are compelling policy
reasons for conducting operational assertions.
First and foremost, protests without operations give the coastal State exactly
what it wants — restrictions on our mobility and a change in our behavior
consistent with the illegal claim. For example, North Korea purports to exclude
foreign military forces from its 50-nautical-mile security zone. The U.S. has
protested the claim, but failure to operate within the zone would play into
North Korea's hands by effectively respecting the claim. Similarly, the
Government of the Philippines claims that all waters within its archipelagic
baselines are internal waters not subject to archipelagic sea-lanes passage.
Again, protest alone is not enough. An illegal claim cannot be permitted to
deny U.S. forces the ability to transit critical sea-lanes that have been used by
mariners for centuries. Of course, operational assertions send an even stronger
signal than diplomatic protests, for protests alone seldom provide a sufficient
incentive to impel relinquishment of the claim. Moreover, if assertions or
routine exercises of rights are not conducted in normal times, the political cost
of an assertion during a crisis is likely to be far higher. For instance, failure to
regularly transit the Taiwan Strait would complicate the ability to operate
there in times of crisis.
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The US. Freedom of Navigation Program
Frustrations, Challenges, and Successes
While policy guidance is published in the Pentagon and at senior military
commander headquarters in traditional top-to-bottom fashion, the FON
Program is implemented using a reverse, bottom-up procedure. Periodically,
higher authority will issue a letter or message that encourages the operating
forces to conduct assertions. Rarely, if ever, is a specific assertion directed. 26 On
the contrary, most assertions by Navy ships or aircraft begin with a proposal
developed by a numbered fleet commander or a subordinate command. Many
are later canceled by higher authority for reasons impossible for the subordinate
command to have foreseen, often after the operating forces command has
expended great energy in planning the assertion. Understandably, frustration
results. To help alleviate this problem, Pentagon policy makers should direct
assertions from time to time, particularly in the case of long, unchallenged
claims; those who direct cancellation of an assertion must also provide the
earliest possible notice and share their rationale with those in the field.
More significantly, one or more of the players in a FON assertion will
misunderstand the program and oppose it as provocative. The nay-sayers at
times include U.S. embassy officials, military commanders, staff officers, and
DoS and DoD officials — many of whom have had no previous experience with
the program. The only answer is education and training. The program merits
and requires continuous explanation. 27
At times, assertion opportunities are missed due to erroneous perceptions
that the coastal State will use force to prevent it or take other retaliatory
action. In fact, rarely is there any type of response. FON action officers must
study the historical record of assertions to ascertain the likely response.
Intelligence officers and country specialists can serve as important sources of
information concerning coastal State sensitivities.
The high tempo of current operations and the shrinking numbers of
available ships and aircraft are practical impediments to some assertions. The
challenge for the action officer is to know all of the excessive claims in the area
of responsibility, and to take advantage of any units that might be operating in
the vicinity of such a claim. Generally, given the worldwide operation of U.S.
ships and aircraft, at some point in time, a ship or aircraft will be close enough
to conduct the assertion with little or no additional costs in time or money.
In the end the frustrations and challenges are outweighed by the success
stories. As a result of the routine and frequent exercise o{ navigation and
overflight rights around the world, law of the sea concepts such as innocent
passage of warships, transit passage, and archipelagic sea-lanes passage are well
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Dennis Mandsager
established in customary international law, a number of coastal States have
withdrawn excessive claims, 28 and the right to conduct military operations with
due regard for resource related activities in the EEZ of coastal states is widely
understood and respected. The returns benefit not only the U.S., but all
nations interested in promoting maritime mobility.
Even the instances of friction may prove beneficial. Recall the Black Sea
"bumping " incident of February 1988, when two U.S. ships entered the Soviet
territorial sea in the Black Sea during a FON operation. The subsequent
"shouldering" by two Soviet warships led to a U.S. diplomatic protest.
Ultimately, the two governments reached a consensus 29 that the law of
innocent passage is expressed in the LOS Convention, that all ships, including
warships, enjoy the right of innocent passage, that neither prior notice nor
authorization is required prior to innocent passage, and that internal coastal
State laws should conform to this uniform interpretation of the applicable legal
regime. Optimally, future assertions will produce similar results.
The FON Program has provided one clear benefit to the operating forces
and operational commanders and their staffs. Planning and conducting the
assertions have caused a greater understanding of law of the sea principles and
their effect on military operations. When conducting or approving the
assertions, operators and their legal advisors must know with specificity in
which ocean zone the ship or aircraft will be operating, and understand its
corresponding rights and duties. Real world operations demand a much more
intense focus than that needed in training or academic environments; mistakes
can be politically embarrassing for the United States.
Future
There was no question as to the need for a FON Program in an international
environment that lacked a widely accepted law of the sea treaty. But as the
LOS Convention becomes widely accepted, will a FON Program still be
needed? The answer is "yes."
First, excessive jurisdictional oceans claims will likely always exist. Even
parties to the Convention may enact domestic legislation or regulations
inconsistent with its provisions. Such threats to the Convention regime should
remain a focus of the FON Program.
Second, the U.S. is not yet a party to the Convention. Some States persist in
their position that certain navigation and overflight rights articulated in the
Convention are available only to parties. An active FON Program is necessary
to preserve those rights for the U.S. in the face of that position.
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The US* Freedom of Navigation Program
Third, while the Convention is the result of remarkable efforts, it is,
nevertheless, a product of committees and compromises. There are ambiguities
and gaps — some unintentional, some intentional, some creative, and some the
product of a lack of agreement. Such ambiguities and gaps, coupled with
pressures for restrictive changes, particularly in the environmental arena,
mandate a continuation of the program in some form. In that regard, consider
the following:
• Marine scientific research (MSR) is subject to coastal state jurisdiction in
the EEZ, but the LOS Convention fails to define the term, a particular problem
because hydrographic surveys and the collection of marine environmental
information for military purposes are considered by the U.S. to be high seas
freedoms that are not subject to coastal state jurisdiction, even when
conducted in the EEZ. 30
• The Convention does not address flight information regions (FIRs) or air
defense identification zones (ADIZs) . Coastal States sometimes demand prior
notice or prior permission for U.S. military aircraft transiting these
zones — even if an aircraft is flying under due regard vice ICAO procedures, will
not enter territorial airspace, or is in transit passage or archipelagic sea-lanes
passage. 31 To provide advance notice under these circumstances would create
an adverse precedent for restrictions on mobility and flexibility.
• There are several U.S. interpretive positions applicable to the transit
passage regime that are not specifically addressed in the Convention. For
example, it is the U.S. position that transit passage extends not only to the
waters of the straits, but also to the normally used approaches; that transit
passage applies to a corridor that extends from shore to shore; and that the
regime applies to all straits capable of being used for international navigation. 32
While these interpretations are reasonable and tend to promote navigational
safety and efficiency, they are not necessarily accepted by all coastal States.
• If an archipelagic State designates sea-lanes or air routes, the Convention
requires that "all normal passage routes" be included. Coastal and maritime
States tend to disagree on designations. Routine use of these routes and
operational assertions against excessive claims will preserve flexibility.
• The transit passage and archipelagic sea-lanes passage regimes permit
ships and aircraft to operate in their normal mode. While not specifically
spelled out in the Convention, the U.S. position is that submarines may
transit submerged. Further, all ships and aircraft may transit in a manner
consistent with sound navigational practices and the security of the force, to
include formation steaming and the operation of radars and other sensors, as
examples. Again, the Convention does not specifically articulate these rights.
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Dennis Mandsager
• Consistent with the LOS Convention (Articles 42, 95, 96, 110, and 236) ,
U.S. military ships and aircraft enjoy sovereign immunity. 33 Nevertheless, they
are often subjected to demands or requests to submit to searches or inspections.
The FON Program can demonstrate a clear sovereign immunity policy needed
to ensure these demands are resisted to avoid erosion of this principle.
A widely ratified Convention represents the best available path to oceans
stability. All nations should carefully balance any objections to the reformed
Convention against the significant gains that would be achieved through
acceptance. The FON Program has served and will continue to serve U.S.
interests well. In the future, an effective FON Program will have U.S. forces
exercise their rights to ensure that practice under the LOS Convention is
consistent with customary international law and operational requirements.
Other maritime States which have benefited from the U.S. program, should
consider the adoption of such a program — modified to meet their specific
needs — to ensure their law of the sea rights are preserved. States with similar
maritime interests could clearly benefit from a coordinated FON program.
Notes
1. J. Ashley Roach & Robert W. Smith, Excessive Maritime Claims (66
INTERNATIONAL LAW STUDIES, 1994) [hereinafter ROACH & SMITH) is an excellent reference
that provides a detailed description of "diplomatic and military efforts undertaken by the United
States Government to preserve and enhance navigation and overflight freedoms worldwide."
The second edition of the book was published as UNITED STATES RESPONSES TO EXCESSIVE
Maritime Claims (1996).
2. see u.s. deft of state, gist, u.s. freedom of navigation program, dec.
1988.
3. Though other U.S. government agencies do participate in some of these consultations;
the Department of State is generally in the lead, with the Department of Defense being the major
supporting player.
4. See WILLIAM S. COHEN, SECRETARY OF DEFENSE, ANNUAL REPORT TO THE
President and the Congress (1997), at 1-1.
5. Detailed descriptions of the legal divisions of oceans and airspace and the rights of
navigation and overflight can be found in THE COMMANDER'S HANDBOOK ON THE LAW OF
NAVAL OPERATIONS. The Handbook was published jointly by the Navy, Marine Corps, and
Coast Guard in 1995 as Naval Warfare Publication (NWP) 1-14M/MCWP
5-2.1/COMDTPUB P5800.1 [hereinafter NWP 1-14M]. It sets out fundamental principles of
international and domestic law that govern naval operations at sea during peacetime and during
periods of armed conflict. It was previously published as NWP 9 (Rev. A)/FMFM 1-10 in 1989
and as NWP 9 in 1987. The ANNOTATED SUPPLEMENT TO THE COMMANDER'S HANDBOOK
ON THE LAW OF NAVAL OPERATIONS was published on November 15, 1997. Prepared by the
Oceans Law and Policy Department, Center for Naval Warfare Studies, Naval War College; it is
a footnoted version of NWP 1-14M with numerous references to sources of legal authority.
6. See NWP 1-14M, supra note 5, para. 1.5.
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The US. Freedom of Navigation Program
7. ROACH AND SMITH, supra note 1, provides a detailed discussion of many excessive
claims.
8. See NWP 1-14M, supra note 5, para. 2.6; and ROACH AND SMITH, supra note 1, at 5.
9. NATIONAL MILITARY STRATEGY was published in 1997 by the Chairman of the Joint
Chiefs of Staff (CJCS) to articulate the strategic direction U.S. Armed Forces should take. In
formulating the document, CJCS derived guidance from A NATIONAL SECURITY STRATEGY
FOR A NEW CENTURY, which was published by The White House earlier in 1997.
10. National Security and the Convention on The law of the Sea is a U.S.
Department of Defense position paper that analyzes DoD interests in having the United States
become a party to the 1982 United Nations Convention on the Law of the Sea. The Second
Edition was published in January 1996.
11. Id. at 10.
12. . . .FROM THE SEA is a Navy and Marine Corps White Paper that outlines a new strategic
direction for naval forces in the 21st century. It was published in 1992, and updated by
Forward . . . From the Sea in 1994.
13. The LOS Convention, U.N. Doc. A/CONF.62/122 (1982).
14. 18 WEEKLY COMP. PRES. DOC. 877 (Jul. 9, 1982).
15. 19 WEEKLY COMP. PRES. DOC. 383-385 (Mar. 10, 1983).
16. Id.
17. See LES ASPIN, SECRETARY OF DEFENSE, ANNUAL REPORT TO THE PRESIDENT AND
the Congress (1994), at G-l.
18. Statement on the Signing of an Agreement on the U.N. Convention on the Law of the
Sea, Office of the Assistant Secretary of Defense News Release, July 29, 1994.
19. The agreement was adopted by the U.N. General Assembly on July 28, 1994. It is to be
applied with the LOS Convention as a single agreement. See U.N. DOC. A/RES/48/263, Aug. 17,
1994 and accompanying "Agreement Relating to the Implementation of Part XI of the United
Nations Convention on the Law of the Sea of December 10, 1982."
20. See Letter of Transmittal, S. TREATY DOC. 103-39, (1994).
21. See Cohen, supra note 4, at H-l.
22. Id. atl-l.
23. The manual is prepared by the Department of Defense Representative for Oceans Policy
Affairs and is published as DoD Directive 2005. 1-M, January 6, 1997. Earlier versions were
published in 1987 and 1990.
24. NWP 1-14M, supra note 5.
25. This report is included in SECRETARY OF DEFENSE, ANNUAL REPORT TO THE
PRESIDENT AND THE CONGRESS. As reflected in the April 1997 report (Appendix I), from 1
October 1995 to 30 September 1996, FON assertions were conducted against the following
countries with excessive maritime claims: Bangladesh (excessive straight baselines, claimed
security zone, and claimed territorial airspace beyond 12 NM); Burma (excessive straight
baselines, claimed security zone, and claimed territorial airspace beyond 12 NM); Cambodia
(excessive straight baselines, claimed security zone, and claimed territorial airspace beyond 12
NM) ; China (prior permission for warships to enter the territorial sea) ; Egypt (excessive straight
baselines and prior permission to enter the territorial sea) ; India (prior permission for warship to
enter the territorial sea) ; Iran (excessive straight baselines and prior permission for warship to
enter the territorial sea) ; Maldives (excessive straight baselines and prior permission to enter the
territorial sea) ; Oman (excessive straight baselines and prior permission to enter the territorial
sea) ; Pakistan (prior permission for warships to enter the territorial sea) ; Philippines (excessive
straight baselines and claims archipelagic waters as internal waters); Sudan (prior permission for
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Dennis Mandsager
warship to enter the territorial sea) ; Vietnam (excessive straight baselines and claimed security
zone) ; and Yemen (prior permission for warship to enter the territorial sea) . See Cohen, supra
note 4, at I— 1.
26. In multiple tours as a FON action officer, I do not recall a single instance of a directive to
conduct a particular FON assertion emanating from Washington, D.C.
27. THE COMMANDER'S HANDBOOK ON THE LAW OF NAVAL OPERATIONS is a useful tool
for teaching law of the sea principles and for sharing U.S. views on oceans policy. I personally
have provided copies to military commanders and staff officers, U.S. embassy officials, and
foreign counterparts. The publication has always been well received.
28. See ROACH & SMITH, supra note 1, at 255-56.
29. On September 23, 1989 at Jackson Hole, Wyoming, U.S. Secretary of State James Baker
and Soviet Foreign Minister Eduard Shevardnadze signed the Uniform Interpretation of Rules of
International Law Governing Innocent Passage, 28 I.L.M. 1444-7 (1989).
30. NWP 1-14M, supra note 5, para. 2.4.2.1-2.
31. For a discussion of due regard, ICAO procedures, and air navigation, see NWP 1-14M,
supra note 5, para. 2.5.
32. See generally NWP 1-14M, supra note 5, para. 2.3.3.1.
33. For a brief discussion of sovereign immunity principles, see NWP 1-14M, supra note 5,
para. 2.1.2 and ROACH & SMITH, supra note 1, at 263-264.
127
VII
The Framework in the Founding Act for
NATORussia
Joint Peacekeeping Operations
Myron H. Nordquist
A
T THE MINISTERIAL MEETING of the North Atlantic Council held at
NATO Headquarters in Brussels on 10 December 1996, Secretary
General Javier Solana was tasked with developing an agreement on a new
NATO-Russia relationship. The foundation for the consultations was based on
previous "16 plus 1" discussions; that is, the sixteen members of NATO plus the
Russian Federation. The participation of the Russian Federation in the
Partnership for Peace programs and in contributing troops to the
Implementation Force (IFOR) in Bosnia and Herzegovina were cited as favorable
factors for this initiative. The NATO ministers envisioned a fundamentally new
European security era in which NATO and Russia's relationships would deepen
and widen. Agreement was to be explored on a "framework of its future
development" expressed in a "document or . . . Charter."
Founding Act
The Founding Act on Mutual Relations, Cooperation and Security between
NATO and the Russian Federation was signed in Paris on 27 May 1997. On one
The Framework in the Founding Act
side, the signatories were the Secretary General of the Atlantic Alliance, Javier
Solana, and NATO Heads of State such as President William Clinton, and on
the other side, the President of the Russian Federation, Boris Yeltsin. The
signatories stressed the historic significance of the Act that was heralded as
beginning a "new chapter of Euro-Atlantic security." 1 At the Act's signing
ceremony, repeated references were made to the end of the Cold War and to
the notion that the Act was laying the foundation for NATO-Russia collective
security cooperation in the twenty-first century. President Clinton spoke
enthusiastically both about a new Russia and about building a new NATO.
President Yeltsin, not to be outdone, expressed at least equal enthusiasm for
the Act. Indeed, the euphoria of the Russian President was such that he
unexpectedly announced at the end of the ceremony: "I, today, after having
signed the document am going to make the following decision. Everything that
is aimed at countries present here, all of those weapons are going to have their
warheads removed. (Applause.)" 2 A few hours later, spokesmen for President
Clinton were still seeking "clarification" about the meaning of the Russian
President's "impromptu remark." 3
The matter of detargeting or deactivation of Russian missiles is only one of
many significant international security issues that requires clarification as a
result of the signing of the Act. The long-term ramifications in the Act for
either classic peacekeeping or new enforcement action operations involving
forces from both NATO and Russia is another important area that merits study.
In this latter case in particular, professional military experts must look for
guidance about joint operations conducted by the combined military forces of
NATO and Russia.
The Founding Act is an umbrella document that, at best, lays out a general
framework for concrete action. Practical as well as conceptual problems are
immediately presented. And, with such far-reaching consequences, it is
predictable that differing interpretations of the Act's numerous provisions will
surface, probably sooner rather than later. When this happens, the view
advanced in this essay is that the language in the document itself must be the
starting basis for analysis. In fact, this point already arose on the day the Act
was signed. A reporter asked President Clinton's Press Secretary, Mike
McCurry, whether he was "convinced now that Boris Yeltsin understands the
Russian role [in the Act] in the same way that the United States understands
the Russian role and the rest of NATO does?" McCurry responded: "I don't
think he [Yeltsin] ever had any understanding but what was in the document
that he signed a short while ago." 4
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Interpreting the Founding Act
Significant implications flow from adopting McCurry's position. Common
sense as well as traditional legal practice supports the proposition that the
language actually embodied in the text of the Act is the best evidence of the
intentions of the signatories. The actual words agreed to by the signatories are
certainly entitled to more weight than are the speculations of third party
observers or the perception spin given by interested parties to the media.
An initial step in selecting rules to interpret the text of a multilateral
document is to determine its status under international law. In the case of the
Founding Act, this is not as straight forward as one might expect. Recall that
the Ministerial guidance provided to NATO's Secretary General was vague
about the form in which the agreement might be expressed. The signatories
obviously chose to call the final document an "act." This deliberate decision by
the nations concerned merits a brief examination.
The term "act" is usually "reserved for a multilateral convention concluding
a session of States on important questions that lays down the law between them
for the future." 5 An example is the "Concluding Act of the Negotiation on
Personnel Strength of Conventional Armed Forces in Europe" signed in
Helsinki on 10 July 1992. 6 In Section VIII of this instrument, it is explicitly
provided that the "measures adopted in this Act are politically binding." This
Act dealing with Conventional Forces was an outgrowth of the Conference on
Security and Cooperation in Europe: Final Act concluded in Helsinki on 1
August 1975, that was also a legally non-binding document. 7 The question of
whether a Final Act is a "treaty or merely a machinery arrangement to be
utilized by the parties depends upon its interpretation." 8 The problem with this
observation is that it begs the question of what rules of interpretation are to be
selected to interpret?
The Founding Act is an international agreement embodying a number of
specific commitments that is signed by sixteen Heads of State or Government.
These officials are sophisticated people who are well advised by legal experts.
Such officials must be presumed, for example, not to have chosen to call the
document a "joint declaration" or to select a similar label that clearly connotes
noncontractual obligations. In international law practice, a joint declaration is
typically a public announcement by several States that expresses a common
policy outlook without taking on the character of a contractual or legal
obligation. Towards the other end of the international obligation spectrum is
the formal treaty that embodies the solemn consent by a sovereign State to
accept binding legal commitments. The Founding Act was also not called a
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"treaty," and that too must be presumed to be a deliberate choice of the leading
political leaders of the signatory States. Considered only from a process point of
view, that is unfortunate, for if the Act were a treaty, this examination would
be unnecessary. The rules to interpret the meaning of the Act's text under
international law would, without doubt, be found in the Vienna Convention
on the Law of Treaties. 9 It is noteworthy, however, that, even in this "treaty on
treaties," the fact that the signatories consciously chose to call the document
an "Act" does not mean that it is not a treaty for the purposes of using the rules
in the Vienna Convention. Moreover, the "Act" label does not necessarily
mean that the document fails to meet the requirements for a treaty under the
domestic law of the United States.
The Vienna Convention provides that the definition of "treaty" in the
international law sense may be different from the domestic law sense. Use of
terms in the Vienna Convention sense is "without prejudice to the use of those
terms or to the meanings which may be given to them in the internal laws of
any State." 10 This safeguard takes into account the different internal
ratification processes of -States. The comment by the International Law
Commission about this point in the Vienna Convention reads:
In many countries, the constitution requires that international agreements in a
form considered under the internal law or usage of the State to be a "treaty" must
be endorsed by the legislature or have their ratification authorized by it. . . .
Accordingly, it is essential that the definition given to the term "treaty" in the
present articles should do nothing to disturb or affect in any way the existing
domestic rules or usage's which govern the classification o( international
agreements under national law. 11
The Vienna Convention is not in force for the United States, and the treaty
interpretation rules therein are, strictly viewed, not governing for a non-party.
But the rules of interpretation in the Vienna Convention do represent
"generally accepted principles and the United States has also appeared willing
to accept them despite differences of nuance and emphasis." 12 While courts in
the United States are generally more willing than those of other States to look
outside the instrument, at the travaux preparatories, in most cases, both the U.S.
and Vienna Convention approaches lead to the same result. 13 A closer look at
the Vienna Convention is needed to satisfy our quest for what rules are
appropriate to interpret the meaning of the Founding Act.
A treaty is defined in article 2 of the Vienna Convention as follows:
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Myron H. Nordquist
. . . "treaty" means an international agreement concluded between States in
written form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its particular
designation . . . (emphasis supplied).
On its face, the Founding Act is an international agreement in written form
concluded between States as evidenced by being signed by a number of Heads
of State or Government. The fact that one signatory was the head of an
international organization, i.e., NATO, consisting of virtually all the States
involved, only adds weight to the impression that important commitments of
some significance were being made for Russia, as well as for NATO and its
member States. In its own right, NATO is generally accepted in the modern
practice of international law as a proper subject to be governed by international
law. Along the same line, one may safely assume that the Secretary General
possesses full powers to represent the organization in concluding treaties or
other international instruments involving binding commitments of various
kinds. The government signatories, also prima facie, have full powers to act as
representatives for the purpose of expressing the consent of their respective
States to be bound by the instrument. 14 Thus, from a formality standpoint, the
Act as executed could have qualified as a treaty under the definition in the
Vienna Convention.
The fact remains, however, that the drafters consciously chose not to treat
the Act as a treaty. Indeed, the circumstances surrounding the negotiation and
execution of the document suggest that high-level political rather than legal
commitments were contemplated. Political obligations differ in important
respects from legal obligations. While political obligations are not enforceable
strictly speaking, they may be more significant in practical impact. Political
commitments are usually more comprehensive in scope and carry greater
long-term implications than do legal obligations. This would appear to be a fit
characterization of the Founding Act. The Act was signed at an unusually high
level with great public fanfare. Moreover, there was no provision for domestic
ratification included in the document. Without ratification, most States,
including the United States, do not contemplate undertaking binding treaty
obligations.
Those analyzing the Act and the meaning of its text are accordingly still left
with the practical task of interpreting an international instrument containing
important commitments for which there are no universally accepted rules. To
deal with the problem, this writer decided to adopt the following approach: the
Founding Act will be treated as a treaty for the limited purpose of applying the
widely accepted rules of interpretation in the Vienna Convention to analyze
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The Framework in the Founding Act
the meaning of the text. This decision is justified because, looking at the entire
context, the Vienna Convention rules are the best choice for legal guidance
given their global acceptance. Indeed, the writer cannot think of better rules to
facilitate a disciplined evaluation of this document. Considering the Act as a
treaty for the limited purposes of interpretation obviously does not mean that
the Act is equivalent to a treaty embodying binding legal commitments. It does
mean that selection of such a disciplined approach is more likely to lead to
conclusions consistent with the elevated status of the signatories whose direct
participation indicates that the exact wording of the Act was intended to be
taken very seriously.
In the case of the United States, there is no evidence that President Clinton
intended the Act to be a formal treaty in the sense contemplated by the U.S.
Constitution. Had that been his intent, he would have planned to seek the
advice and consent of the Senate. There is great wisdom in consulting the
Senate early and often on important foreign policy matters, but nothing
indicates that the President wanted to present the difficult issues raised by the
Act to public debate in the Congress. Given that the Senate is controlled by
the opposition party, the President was probably content at this stage to rely
upon his inherent powers as Head o{ State and Commander in Chief of the
Armed Forces as the sources of his authority to act. Of course, the fact that a
treaty is not perfected in the municipal law sense does not relieve the State of
its obligations under international law. Confusion sometimes arises on this
point because while the domestic and international law spheres are related,
they are often quite distinct. This duality of legal regimes can be quite handy. In
this case for instance, President Clinton probably achieved exactly what he
wanted for both his domestic and international law purposes. That is, the
United States intends to honor the political commitments to other nations
made by the President in the Act under international law but is not bound by
legal obligations in the Act under domestic law.
In light of the foregoing, the legal status of the Act under either domestic or
international law is unaffected merely by using the treaty interpretation
principles and rules in the Vienna Convention to help ascertain the meaning of
its language. In all events, interpreters use either implicit or explicit rules to
reach conclusions about the meaning of text. In this study, the Vienna
Convention rules are expected to provide some guidance.
Proceeding on that basis, Article 31(1) of the Vienna Convention first
provides the general rule that a treaty must be interpreted in good faith by
according ordinary meaning to its terms "in their context and in light of its
object and purpose." 16 The context expressly includes agreements relating to
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Myron H. Nordquist
the treaty. In the case of the Founding Act, this category covers many treaties
and other forms of international agreements that are cited with favor or
directly incorporated by reference. Examples include the UN Charter and the
Helsinki Final Act.
Paragraph 3 of Article 31 of the Vienna Convention deals with the
subsequent practice of States that is to be taken into account with the context.
Sub-paragraph 3(a) identifies subsequent agreements between the parties
interpreting the treaty or applying its provisions as part of this subsequent
practice. Sub-paragraph 3(b) references "any subsequent practice in the
application of the treaty which establishes the agreement of the parties
regarding its interpretation." Thus, subsequent practice includes both words
and deeds.
The primacy of the written text itself over external context is demonstrated
by the Vienna Convention's interpretative rules with respect to supplementary
sources. Supplementary means of interpretation may be sought in the
preparatory work leading up to the document text and the circumstances of the
treaty's conclusion. But recourse to supplementary means of interpretation is
allowed for two limited purposes. Supplementary sources may be consulted
either to confirm the meaning of the text itself or to determine the meaning
when the text is ambiguous or obscure or leads to a result "manifestly absurd or
unreasonable." 17
The North Atlantic Treaty
Before examining the text of the Founding Act in light of the rules of
interpretation in the Vienna Convention, it is necessary to understand the
North Atlantic Treaty that created NATO. Certainly there is no argument
about applying the Vienna Convention's rules of interpretation to this treaty in
an effort to ascertain the legal parameters governing NATO.
Entering into force in 1949 at the outset of the Cold War, the North
Atlantic Treaty established NATO as an organization to provide for the
collective defense of its members; that is, an armed attack on one is an attack
on all. The operative language is contained in one long sentence in Article 5 of
the Treaty:
The Parties agree that an armed attack against one or more of them in Europe
or North America shall be considered an attack against them all; and
consequently they agree that, if such an armed attack occurs, each of them, in
exercise of the right of individual or collective self-defense recognized by Article
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The Framework in the Founding Act
51 of the Charter of the United Nations, will assist the Party or Parties so
attacked by taking forthwith, individually and in concert with other Parties, such
action as it deems necessary, including the use of armed force, to restore and
maintain the security of the North Atlantic area. 18
The text of Article 5 is unmistakable about where the armed attack must
occur against a Party: the attack must be in Europe or North America. Article 6
is even more geographically specific by expressly citing the "territory of any of
the Parties in Europe or North America, ... on the occupation forces of any
Party in Europe, on the islands under the jurisdiction of any Party in the North
Atlantic area north of the Tropic of Cancer or on the vessels or aircraft in this
area of any of the Parties." 19
The question that immediately arises for an essay concentrating on
peacekeeping is where is the authority in the North Atlantic Treaty for NATO
to initiate peacekeeping operations in Bosnia and Herzegovina? Where was the
armed attack against a Party as required by Article 5 ? And even if the Article
51 concept of self-defense was construed to deem that an armed attack
occurred, did it take place on the territory of any of the NATO members as
concretely defined in Article 6 of the North Atlantic Treaty?
The express mention of Article 51 in Article 5 leaves no room for argument
about the point that NATO was conceived as an Article 51 self-defense
organization under Chapter VII of the UN Charter. The North Atlantic Treaty
was also formally ratified by its Parties (including the Senate of the United
States) as a Chapter VII entity. The reason was plain fifty years ago and is plain
now. Had NATO been established as a regional collective security arrangement
to undertake enforcement actions under Chapter VIII, it would be subject to a
Soviet veto in the Security Council. Article 53 of the Charter explicitly
provides that "no enforcement action shall be taken under regional
arrangements or by regional agencies without the authorization of the Security
Council. . . ." To give the Soviets a veto over NATO actions would defeat the
purpose of an organization established to defend against an armed attack by the
Soviet Union or its allies in the North Atlantic territories of the Parties.
An argument can be made that while the ordinary meaning of the terms and
conditions in Article 5 do not allow NATO to initiate affirmative military
action outside the territory of the Parties, the member States agreed to proceed
according to NATO procedures. The reasoning is that this is subsequent
practice manifesting agreement by the Parties and this makes non-self defense,
out-of-area operations legal. On the international law plane, this argument has
some validity. Recall that the Vienna Convention recognizes subsequent
practice as part of the context to interpret a treaty or to apply its provisions.
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Myron H. Nordquist
The North Atlantic Council did authorize NATO's out-of-area peacekeeping
operations and all sixteen member States have manifested their consent to the
peacekeeping operations in Bosnia and Herzegovina at the highest levels in
many ways.
But there is a problem with this line of reasoning from a Rule of Law
perspective. As explained above, the Vienna Convention accords primacy to
the ordinary meaning of words in the text. What is the value of a treaty text at
all if context in the form of subsequent practice can conflict directly with the
ordinary meaning of the words? Strained interpretations of context, as a matter
of principle, may not be a subterfuge for amending plain treaty language. The
text, and the rules embodied in it, must be honored for the interpretation
process has good faith limits. Black cannot be white no matter how strong the
political will to declare it so. If the text of a treaty is bad, then the remedy is to
amend the language as provided by its terms. The Rule of Law does not lend
itself to "picking and choosing" to meet the needs of political expediency. The
language is so plain in the North Atlantic Treaty that there is no ambiguity
about the point that NATO is an Article 5 1 self-defense organization under
Chapter VII and not a regional enforcement organization under Chapter VIII of
the Charter. Agreed subsequent practice, admittedly based on the consent of
all the parties, cannot be ascribed the same legal stature as an amendment to
the clear terms of a treaty. An argument on the subsequent practice context
has to be fashioned in a mode that is at least compatible with the plain meaning
of the terms in the treaty. Moreover, in the case of the North Atlantic Treaty,
there is an agreed process for making amendments which requires using the
same ratification procedures that were used for formalizing the original text.
However much one sees the practical and political value of using NATO for
activities beyond its constitutional limits, adherence to the Rule of Law is a
higher imperative. The short-term gains in ignoring the law cannot outweigh
the long-term benefits of following it. This seems elementary but it must be said
in this case.
Confusion about the Articles 5 and 6 problem may stem from international
law being based on the consent of sovereign States. Essentially, States may do
between themselves whatever they agree to do. Third parties seldom have legal
standing to complain. Thus, in the sphere of international law, there is no
effective legal remedy for an ultra vires charge with respect to NATO's
out-of-area peacekeeping operations in the absence of the treaty-mandated
armed attack. Who has standing to call the sovereign States to task? There is
no obligation on a Member State to look behind the ostensible authority of
senior representatives in the North Atlantic Council who approve the actions.
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Lack of remedy or effective enforcement, however, does not mean lack of law
and the obligation to obey the law. There is a duty to obey law on the
international plane even in the face of imperfect enforcement. And this
philosophical issue is by no means limited to interpretation of the North
Atlantic Treaty.
Of course, the enforcement issue is quite different under U.S. domestic law
where the Constitution is the supreme law of the land. Both the President and
Congress can be held accountable to obey the Law of the Land. Courts do
enforce the Constitution and this is at the heart of why the United States
promotes the Rule of Law in the former Warsaw Pact nations. Under the
domestic law of the United States, the treaty ratification processes of the
Constitution must be satisfied if and when a case is presented. If the text of the
North Atlantic Treaty is somehow found to admit of the interpretation that
the current NATO peacekeeping operations in Bosnia and Herzegovina were
contemplated within the four corners of the treaty, the Court may consider
supplementary sources such as are found in the debates at the time the Senate
gave its advice and consent in 1949. However, this avenue of possible support
is unlikely to provide much aid or comfort for the proponents of the current
action. 20 This is not to suggest that the Senate is unaware today that NATO is
conducting out-of-area peacekeeping operations that go beyond Article 51
self-defense. Clear evidence of notice to the Senate is provided when Congress
appropriates funds to support NATO's peacekeeping operations in Bosnia and
Herzegovina. This formal act suggests political approval by the U.S. Congress,
including the Senate. However, use of these implied methods of approval is not
the same as adhering to the advice and consent procedures expressly required
by the Constitution. When NATO is funded by Congress to conduct
peacekeeping operations out-of-area, NATO ought to have unquestionable
legal authority to carry out those activities. This is true if for no other reason
than lives are being put at risk. The proper way for American officials to
proceed is to amend the North Atlantic Treaty as provided in that instrument
and as required by the U.S. Constitution. Compliance with the Rule of Law in
this case may engender a politically distasteful public debate about the proper
role for NATO in the post-Cold War era. Such are the costs of Democracy and
respect for the Rule of Law. Since the admission of new members to NATO
must be considered in formal advice and consent processes anyway, the Senate
has an appropriate opportunity, if it so chooses, to revisit the authority of
NATO to act under Articles 5 and 6 of the North Atlantic Treaty.
How might out-of-area peacekeeping activities of NATO be characterized
under another treaty, e.g., the UN Charter? The oft-cited reference
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Myron H. Nordquist
to UN peacekeeping as falling under "Chapter VI and a half " 21 conveys the
notion of activities that go beyond peaceful resolution of disputes but stop short
of armed self-defense responses. Under treaty interpretation rules, Chapter VI
and one half activities are seen as subsequent practice. Unlike the NATO case,
the legitimacy of UN peacekeeping operations is derived from a context of
subsequent practice that does not violate any express language in the Charter.
To take the comparison one step further, the recent NATO actions in Bosnia
and Herzegovina could be characterized as "Chapter VII and a half missions.
The idea is that NATO's peacekeeping efforts there clearly go beyond the
"self-defense" of member's territories in the Chapter VII sense of the UN
Charter but stop short of being international enforcement actions in the
Chapter VIII sense.
By its express terms, the North Atlantic Treaty also must be interpreted as
not affecting "in any way the rights and obligations under the Charter. . . ," 22
Modern international law prohibits States from using military force unless the
actions are in conformity with the UN Charter. Under the UN Charter, the use
of military force is accepted as legitimate for peacekeeping under Chapter VI
and a half, for self-defense under Chapter VII, and for enforcement under
Chapter VIII. As just noted above, the international community may now be
on the verge of accepting Chapter VII and a half as State practice in
circumstances such as Bosnia and Herzegovina. By the terms of the Charter,
UN peacekeeping and enforcement by regional collective security organization
actions require approval by the Security Council (setting aside the
controversial Uniting for Peace Resolution debate) 23 where the Russian
Federation has a veto. As is discussed below, Russia would also have a veto in
any joint NATO-Russia military operations undertaken pursuant to the
Founding Act.
Preamble to Founding Act
With the framework governing the use of force in the UN Charter and the
North Atlantic Treaty in mind, we turn to the first important point stressed in
the preamble to the Founding Act that pertains to future NATO-Russia
peacekeeping operations. This is that the political commitments in the Act are
undertaken at the highest political levels to signify the start of a fundamentally
new relationship between NATO and Russia. The Act is said to define "the
goals and mechanisms of consultation, cooperation, joint decision-making and
joint action that will constitute the core of the mutual relations between
NATO and Russia." 24
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The Framework in the Founding Act
Reference is made to the 1991 NATO Summit Conference in Rome where
the Alliance revised its strategic doctrine to take account of the collapse of the
Soviet Union. The Act then explicitly states the goal of taking on "new
missions of peacekeeping and crisis management in support of the United
•Nations (UN) and the Organization for Security and Cooperation in Europe
(OSCE), such as in Bosnia and Herzegovina. . . ." As explained below, what is
noteworthy about this political commitment is that Russia has a veto about
undertaking peacekeeping operations under either UN or OSCE sponsorship.
A vague reference is also made in the Preamble to addressing "new security
challenges" with other countries and international organizations. The meaning
of this sentence is sufficiently ambiguous that it is a candidate for contextual
interpretation or even interpretation by supplementary sources. For the
purposes of this essay, it can be noted that the reference appears to be broad
enough to encompass out-of-area peacekeeping operations.
Specific mention is made of NATO's efforts to develop the "European
Security and Defense Identity (ESDI). . . ." In this connection, the North
Atlantic Cooperation Council (NACC) is not cited in the Preamble, while the
Partnership for Peace (PFP) program is. Unlike the NAAC, the PFP program is
concerned with peacekeeping and fifteen PFP countries are participating in
Stabilization Force (SFOR) operations in Bosnia and Herzegovina. 25 The PFP,
started at the January 1994 NATO Summit Meeting, joins 27 mostly Central
and Eastern European States (including Russia) with sixteen NATO members
A specific PFP goal is to "create an ability to operate with NATO forces in such
fields as peacekeeping. . . ," 26 Within the PFP framework, peacekeeping field
exercises are undertaken with joint planning facilitated by liaison officers
stationed at NATO Headquarters and a "Partnership Coordination Cell" at
Supreme Headquarters Allied Power Europe in Mons, Belgium. 27
Next, the initiative to establish a Euro-Atlantic Partnership Council
(EAPC) is noted in the Preamble to the Act. The EAPC was inaugurated in
1997 and replaces the NACC. All former NACC members and all countries
participating in PFP can automatically join the EAPC. Other OSCE members
that are willing and able to accept EAPC principles may join by joining the PFP.
Lastly, a commitment is made that NATO member States will examine
NATO's Strategic Concept "to ensure that it is fully consistent with Europe's
new security situation and challenges."
By comparison with the lofty new goals espoused for NATO, the deadpan
characterization of Russia in the last paragraph of the Preamble is much more
down to earth. The Russian Federation is portrayed as "continuing the building
of a democratic society and the realization of its political and economic
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Myron H. Nordquist
transformation." Its military cutbacks are cited favorably, as are its
commitments "to further reducing its conventional and nuclear forces."
Russia's active participation in peacekeeping operations under UN or OSCE
auspices and its contributions to "multinational forces in Bosnia and
Herzegovina" are, however, referred to in a positive vein. 28
The outline for the body of the Founding Act was provided expressly at the
Brussels meeting of the North Atlantic Council Ministers in December 1996.
The content for a new NATO-Russia agreement was identified in Paragraph 10
of their Final Communique as follows:
• the shared principles that will form the basis of our relationship;
• a broad set of areas of practical cooperation in particular in the political,
military, economic, environmental, scientific, peacekeeping, armaments,
nonproliferation, arms control and civil emergency planning fields;
• mechanisms for regular and ad hoc consultations; and
• mechanisms for military liaison and cooperation.
Principles
The opening principle in Section I of the Founding Act is that the NATO
nations and Russia share an interest in the security of the Euro- Atlantic area.
Russia, of course, borders on Middle Eastern and Asian countries as well.
Despite occasional calls to make NATO a worldwide peacekeeping
organization, the principles in the Founding Act make it clear that
NATO-Russian peacekeeping operations do not extend beyond NATO's
traditional geographical sphere of concern in North America and Europe.
The primary role of the OSCE as the only pan-European security
organization for regional security cooperation is stressed as a principle. NATO
and Russia undertake to enhance the operational capabilities of the OSCE for
regional security. Indeed, the parties commit to seeking the "widest possible
cooperation among participating States of the OSCE" to create a common area
of stability and security in Europe. The strengthening of the OSCE's
operational capabilities in peacekeeping is seen as consistent with the
development of its Common and Comprehensive Security Model for Europe
for the Twenty-First Century.
The representatives of NATO and Russia recognize that there are new
threats, e.g., aggressive nationalism, terrorism, and territorial disputes. These
new threats are different in kind, and not just in degree, from the threat of
armed attack against the parties' territories described in Articles V and VI of
the North Atlantic Treaty. The response to these new risks and challenges will
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The Framework in the Founding Act
likewise have to be entirely different. And while not mentioned in the
Founding Act, it is predictable that a pubic debate is inevitable about the
awkward question of whether NATO is properly constituted to deal with these
new threats. The Founding Act is premised, of course, on the principle that
NATO is the organization to meet the new threats.
The signatories reaffirm the principle that the UN Security Council retains
the primary responsibility to maintain international peace and security. The
unmistakable role envisioned for the OSCE is "as the inclusive and
comprehensive organization for consultation, decision-making and
cooperation in this area and as a regional arrangement under Chapter VIII of
the United Nations Charter."
A tangled web of relationships exists with respect to the prospective roles in
regional peacekeeping for European entities such as the Western European
Union ("WEU") vis-a-vis NATO. And the Founding Act stops short of
slamming the door on the WEU being authorized in the future to function as a
Chapter VIII collective security entity with NATO or Russian participation.
What the Founding Act is crystal clear on is that NATO-Russia peacekeeping
operations will either be directly mandated by the Security Council or
authorized by the OSCE as a Chapter VIII regional organization. This policy
decision had to be a key inducement for obtaining a Russian sign-off on the
Founding Act. One very good reason is that Russia has control over military
operations with its veto in both the Security Council and in the OSCE (which,
by the way, operates by consensus). The result is that NATO is politically
bound by the express terms of the Founding Act not to engage in offensive use
of force operations without Russian consent. In fairness, the Russian
Federation is likewise bound. The veto point was emphasized differently by
Presidents Clinton and Yeltsin, as each attempted to put the most favorable
press spin for their respective audiences.
In the United States, domestic critics of the Administration strongly object
to the concept of a Russian veto over NATO military operations. The
fundamental distinction between self-defense and enforcement actions gets
lost in the clamor. The Administration's emphasis is on the non-binding nature
of the Founding Act and the continued NATO self-defense role where
unilateral action by NATO is legally justified. This aspect of the debate is true
as far as it goes, but critics can still probably complain that the American public
was given one impression on the veto issue and the Russian public quite
another. 29 It would be difficult to deny, however, that the Russian veto over
offensive measures by NATO was a major selling point within the walls of the
Kremlin as a justification for signing the Founding Act. From a NATO
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Myron H. Nordquist
standpoint, this principle is nothing new. In December 1992, the NATO
Council decided that the Alliance had a mandate to support peacekeeping
activities of the United Nations and of the OSCE. As stressed above, the legal
justification for out-of-area enforcement actions by NATO itself under the
North Atlantic Treaty remains open to question. One practical possibility was
to remove the authority of the WEU to engage in peacekeeping. However, the
January 1994 NATO Summit endorsed the notion that Europe should develop
a peacekeeping capacity. In addition, the principle was endorsed that the
collective assets of the Atlantic Alliance would be made available for WEU
operations. As of early 1998, the WEU continues in the early stages of
developing its military operational capabilities and has taken credible actions
in the Adriatic, on the Danube, and most recently in Albania. Interestingly,
while the WEU could have based these actions on Articles 52 and 53 of
Chapter VIII, Article 48 in Chapter VII was cited as a basis for its action. Russia
is not, of course, a member of the WEU and thus the WEU was not a realistic
option for selection as a Chapter VIII regional security organization in the
Founding Act.
Another principle stated is that in implementing the Founding Act, NATO
and Russia will observe in good faith their international legal obligations. In
addition to the UN Charter, specific mention is made of the "Helsinki Final
Act and subsequent OSCE documents, including the Charter of Paris and the
documents adopted at the Lisbon OSCE Summit." The Charter of Paris was
signed in November 1990 by the OSCE Heads of State or Government
(including those for NATO and Russia) . Among many other important matters
in the Paris Charter was a vision for more structured co-operation among all
participating States on security matters. Perhaps this is part of the reason why a
specific reference was made to the Paris Charter in the Principles of the
Founding Act. At the December 1996 OSCE Summit on European Security
issues in Lisbon, a Declaration on a Common and Comprehensive Security
Model for Europe for the Twenty-First Century was adopted. The mention in
the Principles of the Lisbon Summit serves to remind the signatories that the
NATO-Russia Founding Act is simply a part of a much larger scheme to create
a more secure Europe.
A number of general principles, not all of which are directly pertinent to the
focus of this essay on peacekeeping, were cited to achieve the aims of the
Founding Act. One is the notion of an equal partnership between Russia and
NATO. This is probably a very important status issue for the Russians, who are
sensitive to the extreme about their diminished military might and are
understandably concerned about the strength of their economy. This principle
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recognizes that that the Russian Federation is an equal on the political level
with NATO. Acceptance of the principle by NATO was wise in that the only
country outside NATO that could challenge NATO militarily is, in fact, Russia.
This is something that American political figures tend to neglect in the debate
about NATO expansion.
Another principle noted is the relationship between economic well-being
and stability, as well as the role that democracy plays in fostering a secure
environment. In this context, it is well worth recalling that democracies do not
wage war on one another. Specific acknowledgment is made to the principle of
refraining from the use of force contrary to the UN Charter and the Principles
in the Helsinki Act. A related principle refers to respect for the territorial
integrity of all States and the peoples' right of self-determination. Several
principles then deal with the idea of mutual transparency, especially for defense
policy and military doctrines. With a Russian physical presence at NATO
Headquarters, one can envision considerable transparency on the part of
NATO. It is less easy to see how NATO plans equal access to the formulation of
Russian defense policy and military doctrines.
The last principle cited that is directly related to this study reads:
. . . support, on a case-by-case basis, of peacekeeping operations carried out
under the authority of the UN Security Council or the responsibility of the
OSCE.
The shared commitment of NATO and Russia to support peacekeeping
operations (all of which are case by case) is not new. The NATO-led
multinational force (IFOR) established to implement the military aspects of the
Bosnia Peace Accord completed its work in December 1996 and was replaced
by a smaller Stabilization Force (SFOR). The Russian contingent in IFOR
numbered some 2,000 troops at its height and its participation in SFOR in late
1997 was around the 1,400 level. 30 Of the thirty-six nations with forces in
Bosnia, the U.S. forces make up about 25 percent or 8,000 of the total allied
ground force of 35,000. 31
The Bosnia peacekeeping venture demonstrates that NATO and Russian
military forces can be successfully integrated in the field in joint operations at
least in a marginally hostile environment. Presidents Yeltsin and Clinton are
also apparently able to resolve successfully reasonably difficult political
problems. The Founding Act is a striking example of the willingness of these
two world leaders to compromise towards one another's positions. But too
much can be read into the ability of NATO and Russian forces to integrate
militarily, based on the Bosnia experience. The modest successes to date do not
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Myron H. Nordquist
warrant jumping to the conclusion that joint NATO Russia operations at the
division levels can work successfully in a truly hostile environment.
Peacekeeping operations based on host State consent with a token five percent
Russian troop involvement is quite different from enforcement operations in
actual combat situations where there might be a substantially large percentage
of Russian troops. Many thorny interoperability problems are unresolved
pertaining to command and control, intelligence sharing and the like. The
professional military must guard against the pressure from political figures to
make more of the Bosnia experiment than is there.
The NATORussia Permanent Joint Council
Section II of the Founding Act establishes yet another organization to deal
with European security issues. The NATO-Russia Permanent Joint Council is
to carry out the mandates in the Act and "to develop common approaches to
European security and to political problems." Considerable latitude is certainly
implied by this latter phrase. The loose language of this mandate further
demonstrates the bureaucratic evolution of NATO from a strictly self-defense
military organization to a broader political organization of some kind. One is
handicapped to comment in detail about the nature and even direction of this
evolving entity at this stage, as there is no constituting treaty framework or a
clearly articulated strategy of the end result being pursued. This is not
necessarily unfavorable criticism because the current process has the virtue of
being flexible and pragmatic. It may also be largely unavoidable when there is
no agreed vision to follow.
In any event, the central objective of the new Council is to provide concrete
means to enhance consultation and cooperation between the two sides. In
appropriate instances, joint decisions and joint action may be taken on security
issues. Again, the meaning of this language is vague. What is clear is that all of
this is to be done without extending to the "internal matters of either NATO,
NATO member States or Russia." As expected, no definition is given of what is
an internal matter and what is not. Presumably the decision to label a matter as
internal or non-internal is an internal matter.
Former Secretary of State Warren Christopher and former Secretary of
Defense William J. Perry recently acknowledged the value of the Act's political
provisions, but went on to opine that the "military provisions are less
problematic and more important." 32 They see the object of the Act to create
"permanent, institutionalized military relationships modeled on those forged in
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The Framework in the Founding Act
Bosnia. ..." And practical cooperation with the Russian military is seen as
"more important than meetings and councils." 33
Paragraph 3 of the section in the Act setting up the Council mechanism is
consistent with the former Secretaries' "action versus talk" emphasis. NATO
and Russia are not only to identify but also to "pursue" as many opportunities
for "joint action" as possible. The talk part is not neglected, however. The
Permanent Joint Council is "the principal" venue of consultation in times of
crisis or "for any other situation affecting peace and security." Such a singular
power of appointment must be taken seriously, for there can only be one entity
that is "the principal" location for such weighty matters as discussion of an
inter-party crisis or "any other" security situation. In particular, in addition to
regular meetings, extraordinary meetings of the Council are to be promptly
convened if a member perceives a "threat to its territorial integrity, political
independence or security."
The next paragraph is apparently directed toward less frenetic activities as
reference is made to "the principles of reciprocity and transparency." The
notion is that through the on-going contacts in the Council, NATO and Russia
will keep one another informed of their respective security threats and what
each has in mind to do about them.
Sentence one in paragraph six of this mechanism section seems almost out
of place. An objective observer might think the sentence is a statement of the
obvious, except for the fact that the impression given by the Clinton
administration to the public is that the statement represents an important
accomplishment. The sentence reads:
Provisions of this Act do not provide NATO or Russia, in any way, with a
right of veto over the actions of the other nor do they infringe upon or restrict the
rights of NATO or Russia to independent decision-making and action.
The foregoing sentence is technically accurate: the Act is not a legally
binding treaty and even if it were, there is no right oi veto for Russia in the
Founding Act as such. Russia would have a veto on actions if it were a Party to
the North Atlantic Treaty; all NATO members have veto power since NATO
operates by consensus. Likewise, all fifty-three members of the OSCE
(including Russia) have a veto because that regional organization also operates
by consensus. Perhaps the statement means that the above commitment,
making the Permanent Joint Council "the principal" venue of consultation,
does not "infringe" upon independent decision-making or action. One cannot
help but wonder what the purpose of consultation is if it is not to "infringe"
upon one's actions? The plain language in the sentence is that neither Russia
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nor NATO is given a veto in the Act. True enough, but as explained above, this
is somewhat misleading with respect to peacekeeping operations. The reason is
that Russia and three members of NATO are permanent members of the UN
Security Council. All are also members of the OSCE. And as elaborated fully
above, peacekeeping operations will be carried out only under the authority of
the Security Council or the OSCE. The veto on peacekeeping operations is
there for Russia; it was simply not provided by the Founding Act.
It would be equally accurate, but apparently not as politic, to stress that the
inherent right of self- defense upon which NATO is founded and which is
enjoyed by Russia and the United States alike, truly does not allow a veto by
any other State or organization. That point is not in the Act but may belong
there as much as the sentence quoted above. At the same time, there may be a
host of non-use of force actions that could have been made subject to a veto
and were not. If forbearance to do so is the reason to emphasize the lack of veto,
then one cannot quibble. But the impression should not be left that there is no
Russian veto on the non-self-defense use of force by NATO. Control over the
use of force is what the Security Council is all about and is the hard core
foundation for both the creation, as well as the continued relevance of the
United Nations.
The schedule of regular meetings for the Permanent Joint Council (PJC)
mirrors those of NATO: Foreign Ministers, Defense Ministers and Chiefs of
Staff each meet twice annually, while ambassadors/NAC representatives and
military representatives meet monthly. The possibility of Heads of State and
Government meeting is not excluded but not expressly scheduled. The
Council is authorized (like NATO) to establish either permanent or ad hoc
committees or working groups and meetings of military experts may be
convened, as appropriate. Given the priority on peacekeeping operations, it is
predictable that a committee or working group will soon be established for that
topic.
The Permanent Joint Council has, in principle, three joint chairs. One is the
Secretary General of NATO and another is a representative of Russia. The
third is a representative of one of the NATO member States on a rotation basis.
The first Joint Council meeting held on 18 July 1997 was immediately
presented with a disagreement over who should chair the meetings. A
compromise was worked whereby the Russian Ambassador and Secretary
General Javier Solana are permanent co-chairmen and a representative of the
ambassadors from NATO's sixteen member States will rotate the other position
for three-month periods. 34 The disinformation campaign in the West on the
veto issue continued with the Agence France Presse reporting: "The council
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The Framework in the Founding Act
enables Russia to take part in discussions on NATO policy without exercising a
right of veto in its affairs, notably in its peace-keeping role." 35 An American
writer commented: "The NATO-Russia council is the centerpiece of the
so-called Founding Act . . . conceived as a way to soothe Moscow's hostility
toward NATO's eastward expansion plans and to encourage the Russians to
play a more cooperative role in European security. 36 He added: "... the United
States and its allies insist Russia will only have a voice in, not a veto over,
NATO policies." 37
A significant bureaucratic innovation is also provided in this section of the
Act: agreement is expressed that Russia will establish a Mission to NATO (not
unlike a Mission to the United Nations) headed by a representative at the rank
of Ambassador. Part of his Mission will include a senior Russian military
representative and his staff. The possibility is provided for an appropriate
NATO presence in Moscow, but is not spelled out.
Insofar as the candidates for NATO expansion are concerned, the Russians
won the race to reach NATO Headquarters before they did. Once accepted,
the status of the new members will, of course, be quite different. They will have
the veto all NATO members enjoy and they will be full participants in all
internal NATO meetings. Yet, if the UN Headquarters' experience is an
example, there will be few secrets that the Russians will not hear about now
that they are at NATO Headquarters. That, in itself, may be the best reason of
all for the Russians to have a physical presence in the heart of its former
enemy's military command center.
The agenda for regular sessions of the Permanent Joint Council are being set
jointly by NATO and Russia. At this writing some organizational arrangements
and rules of procedure for the Council have been worked out. At the inaugural
meeting Council ambassadors held in Brussels on 11 September 1997, the
exact purpose intended was achieved but the results were "very disagreeable."
Ambassador Vitaly Churkin, Russia's representative to NATO, was strongly
critical of "the aggressive new Western approach to the Bosnia peacekeeping
mission. . . ." He reportedly said the "intolerable" use of force directed against
the Bosnia Serbs was incompatible with the NATO-led peacekeeping force's
rules of engagement. 38 A senior NATO diplomat is quoted as saying this "was
not a good omen for the future work of the NATO-Russia council." 3 ? A
different atmosphere apparently prevailed a few weeks later when the first
meeting of the Council's Foreign Ministers convened in New York. NATO's
Secretary General reported a successful launch of a new NATO-Russia
"partnership." 40 Indeed, he cited agreement on a work program which
envisioned a range of NATO-Russia cooperation, including peacekeeping. He
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Myron H. Nordquist
highlighted discussion of the present situation in Bosnia and Herzegovina, as
well as "the more general topic of peacekeeping operations." He stressed that
the "idea was to get the work moving and translate the words of the Founding
Act into reality." 41 He also made a cryptic reference to the "potential for
common action ..." between Russia and NATO.
The text of the Founding Act specifies that the Permanent Joint Council
will engage in three distinct activities. The first is to consult on any political or
security issue both sides agree to discuss. This is an extraordinarily broad
mandate with virtually no qualifications on topics, and is additional evidence
of NATO's turn towards being a political forum. The second activity is to
develop "joint initiatives" on which NATO and Russia agree to speak or act in
parallel. Again, there are no conditions and the wide latitude expressly given
certainly includes planning for joint NATO-Russia peacekeeping operations. It
is noteworthy that no distinction is made here between traditional blue helmet
operations under the direct authority of the Secretary General and
enforcement operations under the direct authority of the Security Council.
Indications that the signatories had in mind joint NATO-Russia peacekeeping
operations of all varieties are provided by the third category of activities cited.
Once consensus (another term for veto) is reached between NATO and Russia,
the Permanent Joint Council is authorized to make "joint decisions" and to
take "joint actions" on a case-by-case (code in the Act for peacekeeping
operations) basis. Pointed reference is then made to participation "in the
planning and preparation of joint operations, including peacekeeping
operations. . . ." Of course, the built-in reminder of the mutual veto is
highlighted again with the statement that the peacekeeping operations must be
"under the authority of the UN Security Council or the responsibility of the
OSCE." And just to be sure that there is no room for misunderstanding, a
sentence is added that any actions, i.e., use of force undertaken by NATO or
Russia together or separately, must be pursuant to the UN Charter and the
OSCE governing principles.
The unmistakable impression gained from examining the "three distinct
activities" identified in Section II of the Act is that a priority activity of the
Council is to discuss, plan and present to higher authority, joint NATO-Russia
peacekeeping operations.
Areas for Consultation and Cooperation
Planning for joint peacekeeping operations is, of course, only one of many
areas upon which NATO and Russia are expected to focus in building a new
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The Framework in the Founding Act
cooperative relationship. In Section III of the Founding Act, the signatories are
to consult and strive to cooperate, not only across a wide spectrum of security
issues in the Euro-Atlantic area, but also on concrete crises, including the
contributions of NATO and Russia to the resolution thereof. In the realm of
conflict prevention, the roles of the United Nations and the OSCE are once
again expressly referenced. Significantly, no mention is made in this section of
a role for the WEU or, for that matter, any other European organization in
conflict prevention or crisis management. The sides are to discuss "joint
operations, including peacekeeping operations, on a case-by-case basis under
the authority of the UN Security Council or the responsibility of the OSCE "
A specific reference is made to NATO-Russia "early" participation if Combined
Joint Task Forces (CJTF) are used in peacekeeping operations.
The CJTF concept arose out of the 1994 NATO Summit in Brussels to
provide a mechanism for rapid deployment of peacekeepers. Under the
political umbrella of the North Atlantic Council, the NATO members willing
to lead and support CJTFs undertake operations such as those restoring stability
in Albania in 1997. The Founding Act clearly provides a political and legal
framework within which NATO and Russia could develop and plan joint
initiatives utilizing the CJTF approach. Russia is already participating in the
Euro- Atlantic Partnership Council and in the Partnership for Peace program.
The Permanent Joint Council, however, is an independent springboard to
prepare joint NATO-Russia peacekeeping operations.
One of the first steps that NATO and Russia must take in the preliminary
planning for possible joint peacekeeping operations is to exchange information
on each side's existing approaches to military operations. The experience
gained on each side from the ongoing peacekeeping operation in Bosnia,
despite the tendency to puff too much about its success, is obviously invaluable.
Multinational training exercises such as the week-long peacekeeping exercise
in Kazakstan, led by the United States in mid-September 1997 with troops
from Russia and five other nations, generated additional knowledge and
experience indispensable for planning future NATO-Russia joint operations. 43
This latter exercise, sponsored under the Partnership for Peace program,
reportedly had heavy involvement by Russian military officers in the planning
processes — a most welcome development. 44 The framework in the Founding
Act explicitly targets exchanges between NATO and Russia on strategy,
defense policy, and military doctrine. Exchanging information and conducting
joint exercises are necessary, in part, because they help identify similarities as
well as expose differences in military approaches and doctrine. NATO has had
many decades to work on promoting commonality among its members.
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Myron H. Nordquist
Establishing NATO-Russian commonality will take time, money, and tolerance
on both sides. This is anticipated in the Founding Act, in which the PJC is
tasked to coordinate an expanded program of cooperation between their
respective military establishments.
Political'Military Matters
Section IV of the Founding Act is addressed to broad political-military
issues that are part of the context within which NATO-Russia joint
peacekeeping operations must fit. The first important declaration in this
section is that current NATO members state that they are not planning to
deploy nuclear weapons or to establish nuclear weapon storage sites on the
territories of new members. Indeed, no need is seen to change any aspect of
NATO's nuclear policy by the addition of new members. The carefully crafted
text stops short of a categorical statement that there are no circumstances
under which deployment of nuclear weapons or their storage could occur in the
territory of new members of NATO. While the Russians undoubtedly pressed
for such categorical assurances, NATO leaders went a long way toward
assuaging Russian fears that expansion was moving NATO's nuclear
capabilities closer to Moscow.
The next issue tackled was adapting the CFE Treaty to the changed political
and military circumstances in Europe. The urgency of this issue was recognized
by an undertaking to conclude "an adaptation agreement as expeditiously as
possible. ..." The first step for NATO members and the other State Parties to
the CFE Treaty is to conclude a Framework Agreement with the basic elements
of an adapted CFE Treaty. At the Madrid Summit in July 1997, it was
announced that NATO had advanced a comprehensive proposal for
adaptation of the CFE Treaty on the basis of a revised Treaty structure of
national and territorial military equipment ceilings. This was consistent with
NATO's members previously stated intention to reduce significantly the future
aggregate national ceilings for Treaty-Limited Equipment. These are to be
codified as binding limits in the adapted Treaty, reviewed in 2001 and at
five-year intervals thereafter. In this Section of the Founding Act, NATO and
Russia encourage the Parties to the CFE Treaty to consider reductions in their
CFE equipment entitlements to achieve lower equipment levels. The member
States of NATO and Russia "commit" to exercising restraint with respect to
forces and deployments to avoid diminishing the security environment. They
are, in addition, to develop measures to prevent threatening build-up of
conventional forces in agreed regions of Europe, to include "Central and
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The Framework in the Founding Act
Eastern Europe." Consultations on the evolution of the conventional force
postures are to occur "in the framework of the Permanent Joint Council." 45
To ensure that Russia understands its intent with respect to military
activities in the future, NATO reiterates its modern approach to military
operations in the new European security environment. A cautionary note is in
order after the foregoing discussion directed at confidence-building measures
and the reduction of conventional forces. The reminder required is that NATO
still has a military mission to perform, which may require responding to threats
of aggression or peacekeeping assignments. Whether defending the territory of
member States or conducting military exercises, NATO stresses that it must
ensure "interoperability, integration, and capability for reinforcement rather
than by additional permanent stationing of substantial combat forces." This
strategy is based on the premise that NATO now faces a multiplicity of smaller
threats as contrasted with the monolithic threat of the Cold War era. It is also
consistent with the perceived need for combined joint task forces that are more
rapidly deployable than are larger, more static forces. Lastly, the approach is
compatible with the prevailing political sentiment among NATO members to
spend a lower percentage of their gross national product on military defense
and to make up the difference by multinational burden-sharing through
combined joint forces. 46 While infrastructure compatible with this new
approach must still be developed, the hope is that through agreed transparency
measures, such reinforcements will be properly understood. Russia is to
exercise "similar restraint in its conventional force deployments in Europe."
One of the four main points cited by the Ministers at the 1996 Council
meeting in Brussels for inclusion in the new NATO-Russia relationship, was to
establish mechanisms for military liaison and cooperation. This was
implemented through the Permanent Joint Council's expanding consultations
and cooperation via an "enhanced dialogue between the senior military
authorities of NATO and its member States and of Russia." Both sides are to
significantly expand military activities and practical cooperation "at all levels."
This enhanced military-to-military dialogue includes regularly scheduled
reciprocal briefings on mutual military doctrine, strategy, and resultant force
structure. Specific reference is also made to discussing joint exercises and
training. Broad authority is given in the Act for NATO and Russia to establish
military liaison missions at various levels.
The value of practical activities and direct cooperation, which was
highlighted by former Secretaries Christopher and Perry earlier in this essay, is
the unmistakable focus of the last paragraph in the Founding Act. The
deliberate placement of this point at the very end of the Act serves to
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Myron H. Nordquist
emphasize rather than to diminish the importance of the paragraph — it is no
afterthought. NATO and Russia's respective military authorities are directed to
"explore the further development of a concept for joint NATO Russia
peacekeeping operations," building upon "the positive experience of working
together in Bosnia and Herzegovina." The lessons from the peacekeeping
operations there are to be "used in the establishment of Combined Joint Task
Forces." Of course, agreement on a new command structure to enable all Allies
to participate fully will have to emerge if the CJTF concept is to be advanced.
The plans must be flexible enough to allow for the preparation and conduct of
WEU-led operations as well.
The Ministers meeting held under NAC auspices at the end of 1997 also
stressed the importance of practical cooperation under the Permanent Joint
Council. NATO and Russia were said to have made significant progress on
security issues, including the situation in Bosnia and the conduct of
peacekeeping operations. In this latter instance, encouraging progress was
cited in the working group on peacekeeping. Again, reference was made to
"opening a new era in European security relations" and the "potential of the
Founding Act." 47
The most important message in the Founding Act, that is reinforced by the
highest authorities in the "NATO 16 plus Russia 1," is that their respective
military forces are directed to become allies rather than to continue as
adversaries. The implications of such a profound change for the military
cultures of the respective sides reach well beyond NATO-Russia joint
peacekeeping operations. But that is evidently where the Heads of State expect
to start the process of military integration. As we have seen in this study, this is
to occur within the framework in the Founding Act on Mutual Relations,
Cooperation and Security between NATO and the Russian Federation. It
remains to be seen how much is potential and how much is practical. The
reader is reminded that a wounded bear is far more dangerous than a healthy
one. And it is no overstatement to end this essay with the sobering observation
that global security in the twenty-first century may hinge upon the success or
failure of the grand experiment outlined in the Act.
Notes
1. Remarks by President William Clinton, French President Jacques Chirac, Russian
President Boris Yeltsin, and NATO Secretary General Javier Solana at NATO-Russia Founding
Act Signing Ceremony, White House Press Release, May 27, 1997, at 5.
2. Id. at 7.
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3. Press Briefing by Mike McCurry, White House Press Release, May 27, 1997, at 2.
[hereinafter Press Briefing] An editorial in the December 4, 1997, Moscow Times read:
"There he goes again. President Boris Yeltsin on Tuesday made another startling gesture on
nuclear weapons during his trip to Sweden, only to have it immediately downplayed by his
staff. Yeltsin made people sit up straight in their chair when he offered to cut nuclear
warheads by a third. But only for a moment. As with his earlier offer to no longer target the
West with nuclear weapons, which turned out to be something that had already happened, it
turns out there's not a lot of substance behind the latest offer."
4. Id., at 6. President Yeltsin presented the Founding Act to the Duma where it was
adopted. This suggests that the Russians view the status of the Act as being in the nature of a
treaty carrying binding legal obligations. For a discussion of this issue and other political aspects
of the Act, see Karl-Heinz Kamp, The NATO-Russia Founding Act Trojan Horse or Milestone of
Reconciliation! AUSSENPOLITIK, IV/1997, at 315-324.
5. D.P. O'Connell, International Law 213 (1965).
6. 3 DEPT. OF STATE, DISPATCH 29 Quly 20, 1992). Both the United States and Russia are
Participating States in this Act which expressly refers to the "obligations" in the Treaty on
Conventional Armed Forces in Europe (CFE Treaty) of November 19, 1990.
7. Conference on Security and Cooperation in Europe: Final Act, Aug. 1, 1975. "This
document which was signed by thirty-five nations participating in the Conference, has no legally
binding effect." JOHN NORTON MOORE, ET AL, NATIONAL SECURITY LAW DOCUMENTS 529
(1995).
8. O'CONNELL, supra note 5, at 214.
9. Vienna Convention on the Law of Treaties, May 23, 1969 U.N. Doc. A/CONF. 39/27
(1969), 8 I.L.M. 679 (1969). [hereinafter Vienna Convention]
10. Id., art. 2, para. 2.
11. II Y.B. INTL L. COMM. 196 (1966).
12.1 RESTATEMENT OF FOREIGN RELATIONS LAW OF THE UNITED STATES 196 (1986) .
13. Id., at 198.
14. Vienna Convention, supra note 9, art. 7.
15. Advisory Opinion on Treatment of Polish Nationals in Danzig, P.C.I.J., ser. A/B, No. 44
at 22 (1932).
16. Vienna Convention, supra note 9, art. 31 (1).
17. Id., art. 32.
18. North Atlantic Treaty, Apr. 4, 1949, 63 Stat. 2241, T.I.A.S. No. 1964 [hereinafter
NATO Treaty] . The definition of the territories to which Article 5 applies was revised by Article
2 of the Protocol to the North Atlantic Treaty on the accession of Greece and Turkey and by the
Protocols signed on the accession of the Federal Republic of Germany and of Spain.
19. Id., art. 6. The Algerian departments of France no longer exist and the fact of their
mention in the North Atlantic Treaty is irrelevant.
20. Senator Arthur Vandenberg consulted with the State Department about the
constitutionality of joining the Atlantic Alliance. He drew up a Resolution which, inter alia,
made clear the determination of the United States Government "to exercise the right of
individual or collective self-defense under Article 51. . . ." The text of the Vandenberg
Resolution is reproduced in "NATO Basic Documents" published by the NATO Information
Service.
21. Chapter 6 of the UN Charter is entitled Pacific Settlement of Disputes. Chapter 7 is
entitled Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of
Aggression. The Charter as written makes no references whatsoever to peacekeeping activities.
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Myron H. Nordquist
Accordingly, when this gap became apparent to the members of the UN, this phrase came into
common usage to characterize peacekeeping activities as falling somewhere between Chapter 6
and Chapter 7.
22. NATO Treaty, supra note 18, art. 7.
23. A stalemate occurred in the Security Counsel between the western powers and the
Soviet Union, as the permanent members have a right to veto actions. When it became evident
that the UN was unable to discharge its responsibilities due to this unfortunate fallout from the
Cold War, the General Assembly exercised its prerogative to make recommendations on
virtually any matter that is of interest to it. Accordingly, as a response to the deadlock over the
Korean War, the General Assembly passed a Uniting for Peace Resolution that urged all
members to take actions with respect to threats to international peace and security by enacting a
General Assembly resolution that was a substitution for the Charter-provided Security Counsel
resolution.
24. Founding Act on Mutual Relations, Cooperation and Security between NATO and the
Russian Federation, NATO-Russian Summit, Paris, May 72,1997 [hereinafter Founding Act].
See <http://www.nato.int/docu/comm/m970527/uk-text.htm> for text of Act.
25. This is the successor to the Implementation Force operations enforcing the Dayton
Peace Accords.
26. NATO Partnership for Peace: Invitation and Framework Document, reprinted as
Appendix C in James W. Morrison, NATO Expansion and Alternative Future Security
Alignments 138 (McNair Paper No. 40, 1995).'
27. Id.
28. Founding Act, supra note 22, at 2.
29. See Press Briefing, supra note 3, at 3, for the following exchange at the White House
Press Briefing on the day the Founding Act was signed:
Q. . . . when the NATO agreement was announced there seemed to be some confusion at
least by President Yeltsin about what exactly Russia was allowed to do in terms of a veto. Do you
feel like he's kind of backed off of that and has maybe come to accept your definition?
Mr. McCurry. I don't know if there was confusion. I think he was presenting the Founding
Act in a way that he thought would engender support among the Russian people. And you now
all have [sic] Founding Act, so you know what's in it.
30. Moscow Warns NATO on Bosnia, WASH. POST, Sept. 12, 1997, at 1, 12. [hereafter
Moscow Warns]
3 1 . Interview on Aug. 18, 1997 with recently retired former military commander of NATO,
General George A. Joulwan, ARMY TIMES, Sept. 1,1997, at 6. His percentages work out better
using another report that put the figures at "31,000 soldiers from 30 nations."
32. N.Y. TIMES, Oct. 21, 1997, as reported in the EARLY BIRD published daily by the U.S.
Dep't. of Defense, at 12.
33. Id.
34. International News Release, July 18, 1997, Agence France Press.
35. Id., at 2.
36. William Drozdiak, WASH. POST, July 19, 1997.
37. Id.
38. Moscow Warns, supra, note 27.
39. Id.
40. NATO's Role in Building Cooperative Security in Europe and Beyond, Remarks by the
Secretary General of NATO, Tokyo, Japan, Oct. 15, 1997, at 4.
41. Id.
155
The Framework in the Founding Act
42. Id. at 5.
43. U.S. Leads Peacekeeping Drill in Kazakstan, WASH. POST, Sept. 15, 1997, at 17.
44. Id.
45. The Head of Policy Planning and Speech Writing for NATO, John Barret, commented,
inter alia, at a briefing in Moscow about the substantive differences between the NATO-Russia
Founding Act and the NATO-Ukraine Charter. He noted: "the NATO-Russia Act has a
permanent joint council . . . the Act foresees joint decision-making and the possibility of joint
action of NATO and Russia." Barret also predicted that issues such as the situation in Bosnia
would be part of the PJC consultations. Official Kremlin International News Broadcast, July 15,
1997.
46. The Defense Department's total costs for peacekeeping operations in and around Bosnia
are estimated by the Government Accounting Office to be $6.4 billion through June 1998. After
June 1998, the stabilization force mandate expires and the NATO-led operations are in the
process of formulating a revised mission which will entail revised costs. INSIDE THE NAVY,
February 16, 1998.
47. Final Communique, Ministerial Meeting of the North Atlantic Council held at NATO
Headquarters, Brussels, Dec. 16, 1997.
156
Guarding the Coast:
Alien Migrant Interdiction
Operations at Sea
Gary W. Palmer
HE INVOLVEMENT OF THE COAST GUARD in immigration matters
is extensive. Its wide variety of roles and missions includes:
• Protecting the safety of life at sea, regardless of immigration status;
• Preventing the entry of undocumented migrants into the United States
through at-sea interdiction;
• Facilitating parole into the United States by the Immigration and
Naturalization Service (INS) for prosecution, or turnover to another nation
with criminal jurisdiction over the matter, of aliens found committing criminal
acts at sea;
• Seizing conveyances and arresting alien smugglers, and gathering
evidence in alien smuggling cases to help ensure the successful criminal
prosecution of those involved, and/or civil forfeiture of their vessel;
• Inspecting vessels and facilities subject to Coast Guard jurisdiction in
cooperation with the INS to ensure that any aliens being employed are engaged
in activities consistent with their immigration status;
Guarding the Coast
• Detaining aliens, when encountered on vessels subject to Coast Guard
jurisdiction, who have entered the United States illegally, until disposition
instructions are received from the INS; and
• Complying with appropriate procedures for handling claims to refugee
status and requests for political asylum made during the course of Coast Guard
operations.
Despite these roles and missions, the Coast Guard is neither the architect of
national immigration policy nor even the lead federal agency for immigration
law enforcement. However, the task of enforcing U.S. immigration laws at sea
rests almost exclusively with the Coast Guard. This paper first surveys the basic
legal authority for Coast Guard interdiction and repatriation of illegal migrants
encountered at sea, then looks at how that legal authority is exercised within
the factual context of several different types of alien migrant interdiction
operations.
Basic Legal Authority
On 14 August 1949, Title 14 of the United States Code was enacted into
positive law. 1 For the Coast Guard, a key provision was 14 United States Code
(USC) §89, which authorized the Coast Guard to
. . . make inquiries, examinations, inspections, searches, seizures, and arrests
upon the high seas and waters over which the U.S. has jurisdiction, for the
prevention, detection, and suppression of violations of laws of the United States.
For such purposes, commissioned, warrant, and petty officers may at any time go
on board of any vessel subject to the jurisdiction, or operation o( any law, of the
United States, address inquiries to those onboard, examine the ship's documents
and papers, and examine, inspect, and search the vessel and use all necessary
force to compel compliance. . . . 2
14 USC §89 was initially enacted 3 in response to the decision of the
Supreme Court in Maul v. United States, 4 which affirmed the jurisdiction of the
Coast Guard over U.S. flag vessels under former §3072 of the Revised Statutes
for violations of laws respecting the revenue. However, Justice Brandeis, in his
concurring opinion, expressed his concern that more explicit statutory
authority would be required to authorize seizures of vessels for violations of
laws other than those pertaining to collection of revenues. Congress responded
to that suggestion by adopting essentially the language that exists in 14 USC
§89 (a) today.
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Gary W. Palmer
While 14 USC §89 articulates the extent of the Coast Guard's law
enforcement authority and who may exercise it, 14 USC §2 defines the Coast
Guard's law enforcement mission in more general terms. It states:
The Coast Guard shall enforce or assist in the enforcement of all applicable
federal laws on, under, and over the high seas and waters subject to the
jurisdiction of the United States; shall engage in maritime air surveillance or
interdiction to enforce or assist in the enforcement of the laws of the United
States; shall administer laws and promulgate and enforce regulations for the
promotion of safety of life and property on and under the high seas and waters
subject to the jurisdiction of the United States covering all matters not
specifically delegated by law to some other executive department; . . .
By virtue of the powers conferred by this statute and 14 USC §89, the Coast
Guard is the principal federal maritime law enforcement agency of the United
States. It is in this role that the Coast Guard performs the mission of alien
migrant interdiction operations at sea.
Despite the broad statutory authority conferred on the Coast Guard by 14
USC the Supreme Court has held that ". . . an Act of Congress ought never to
be construed to violate the law of nations if any other possible construction
remains." 5 And, under both Article 6 of the 1958 Convention on the High Seas
(High Seas Convention) 6 and Article 92 of the 1982 United Nations
Convention on the Law of the Sea (LOS Convention), 7 a vessel on the high
seas is subject solely to the exclusive jurisdiction of the flag state. While the
United States is a party only to the High Seas Convention, these provisions in
both treaties confirm existing maritime law and practice and are a codification
of existing customary international law. 8
There are, however, several exceptions to the principle of exclusive flag
state jurisdiction. The most commonly relied upon exception permits a warship
to board any vessel not entitled to complete immunity if there are reasonable
grounds to suspect it is engaged in piracy, slave trading, unauthorized
broadcasting, or that it is a stateless vessel or of the same nationality as the
warship. 9 This is known as the "right of visit." It is a limited exercise of
authority solely for the purpose of verification of the aforementioned
circumstances. Unless the vessel is determined to be the same nationality as
the warship, a stateless vessel, or a vessel engaged in piracy (or other universal
crimes), any further exercise of complete criminal jurisdiction requires a
separate, independent basis. 10 In immigration matters, this normally is found in
an affirmative waiver of exclusive jurisdiction by the flag state and express
consent by the flag state to an exercise of jurisdiction by the United States. 11
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Guarding the Coast
This waiver and consent to jurisdiction may be sought and given on a
case-by-case basis or take the form of a standing special arrangement pursuant
to treaty, exchange of diplomatic notes, or executive agreement.
In October 1994, President Clinton forwarded the 1982 United Nations
Convention on the Law of the Sea to the Senate for advice and consent. In so
doing, the President recognized reliance on flag state consent as a basis for
jurisdiction in immigration matters by stating:
. . . the United States and other members of the international community have
developed procedures for resolving problems that have arisen in certain
contexts, including drug smuggling, illegal immigration and fishing, when States
are unable or unwilling to exercise responsibility over vessels flying their flag.
These procedures, several of which are contained in international agreements,
typically seek to ensure the flag state gives expeditious permission to other States
for the purpose of boarding, inspection, and where appropriate, taking law
enforcement action with respect to its vessels (emphasis added). 12
Thus, 14 USC §89 does not authorize the Coast Guard to conduct searches
and seizures of foreign flag vessels carrying illegal migrants on the high seas
without the consent of the flag state. 13 However, if this consent is obtained, the
Coast Guard may then stop the vessel on the high seas, search for illegal
migrants, and take appropriate action consistent with United States law.
Under 14 USC §89 (b), Coast Guard officers acting pursuant to their general
law enforcement authority are deemed to be agents of those executive agencies
charged with administration of a particular law. When conducting alien
migrant interdiction operations, the Coast Guard relies on this agency theory
to enforce compliance with the Immigration and Nationality Act on behalf of
the INS and the Attorney General. More specifically, the Coast Guard
enforces 8 USC §1 185(a) (1), which states, inter alia, that it is unlawful for an
alien to ". . . enter ... or attempt to . . . enter the United States except under
such reasonable rules, regulations, and orders, and subject to such limitations
and exceptions as the President may subscribe." The Coast Guard also enforces
the provisions of 8 USC §1324 which make it a crime to knowingly bring, or
attempt to bring, an alien into the United States at other than a designated
port of entry.
Coast Guard interdiction policy is determined largely by national security
goals and Presidential directives. The current strategy calls for focusing United
States maritime interdiction operations as far at sea as possible. The manner in
which these operations are conducted, however, is dependent upon a
combination of many factors. The primary ones are: (1) the nature and
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Gary W. Palmer
magnitude of the threat, (2) the type and number of resources available, and
(3) the applicable law.
The remainder of this article examines the application of both the law and
Coast Guard resources to specific migrant interdiction operations. It focuses on
Coast Guard efforts to interdict Haitian, Cuban, Dominican, and Chinese
migrants attempting to enter the United States illegally in overloaded and
unseaworthy craft. The peculiar difficulties of each type of interdiction are
illustrated with factual examples. Finally, it attempts to show how the nature
and magnitude of migrant activity, as well as Coast Guard interdiction
operations, is directly influenced by changes in law and policy.
The Immigration and Nationality Act of 1952
"It is undoubtedly within the power of the Federal Government to exclude
aliens from the country." 14 However, prior to the passage of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, 15 aliens who
resided in the United States or arrived at the border were accorded certain
procedural rights under the Immigration and Nationality Act of 1952 (IN A) 16
before being excluded or deported. Those residing illegally in the United States
were subject to deportation only after a formal evidentiary hearing. 17 Aliens
arriving at "ports of the United States" who did not appear to the examining
immigration officer to be clearly entitled to land were subject to a less formal
exclusion proceeding by which they too were eventually subject to removal. 18
Whether an alien is "excluded" or "deported" turns upon whether they have
"entered" the United States. 19 Aliens who have made an "entry" are entitled to
deportation proceedings, while those who are seeking admission but who have
not made an "entry" are afforded only an exclusion proceeding.
Other aliens could be prevented from entry by Executive actions that did
not trigger any procedural rights. In Haitian Refugee Center, Inc. v. Gracey, the
District court stated:
The Immigration and Nationality Act has established procedures for the
exclusion of aliens, including the entitlement to a hearing. See 8 USC §1226.
Those rights, however, are reserved for aliens arriving "by water or air at any port
within the United States from any place outside the United States." Id Again,
because those "exclusion or deportation" proceedings are restricted to aliens
arriving "at any port within the United States," 8 USC §1221, it is clear that the
interdicted Haitians are entitled to none of these statutorily-created procedural
rights, including the right to counsel. 20
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Guarding the Coast
In either a deportation or exclusion proceeding, an alien could seek asylum
as a political refugee. 21 Section 243(h)(1) of the INA provided:
The Attorney General shall not deport or return any alien ... to a country if the
Attorney General determines that such alien's life or freedom would be
threatened in any such country on account of race, religion, nationality,
membership in a particular social group, or political opinion. 22
Congress thereby intended 23 to incorporate the provisions of the 1951 Convention
on the Status of Refugees 24 as amended by the 1967 Protocol Relating to the Status
of Refugees (the Convention), 2 Article 33 of which provides:
Article 33 - Prohibition of expulsion or return ('refoulement')
1. No contracting State shall expel or return ('refouler') a refugee in any manner
whatsoever to the frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality, membership in a
particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee
whom there are reasonable grounds for regarding as a danger to the security of
the country in which he is, or who, having been convicted by a final judgment of a
particularly serious crime, constitutes a danger to the community of that country
(emphasis added).
The text of Article 33 does not apply by its terms to actions taken by a country
beyond its borders. In fact, the language of Article 33.2 suggests that an alien
entitled to the benefit of Article 33.1 must be located within the territory of a
contracting state. As a result, the Supreme Court determined that since INA
§243 was intended to incorporate the provisions of the Convention, and
neither suggested any extraterritorial application, §243 applied only in the
context of the domestic procedures by which the Attorney General determined
whether to deport or exclude an alien. 26
Since 1980, the Coast Guard has been involved in operations to prevent
illegal migrants from entering the United States and, thereby, from implicating
any statutorily-created procedural entitlements.
Haitian Migrant Interdiction Operations
The near total collapse of the Haitian economy in the late 1970s and early
1980s under the repressive regime of then "President-for-Life" Jean Claude
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Gary W. Palmer
Duvalier resulted in a flood of economic migrants from Haiti attempting to
reach the United States by boat. 27
In response, President Reagan delegated express authority to the Coast
Guard to interdict and return illegal aliens on the high seas. He did this by
promulgating Executive Order 12,324, 28 which was signed in September of
1981 in response to what he characterized as a "serious national problem" of
"continuing illegal migration by sea." 29 It was promulgated pursuant to the
authority of the President under 8 USC § 1182(f) and his inherent authority
under the foreign affairs power of the Constitution 30 to suspend entry or impose
restrictions on entry of aliens. The Order directed the Secretary of
Transportation to issue instructions to the Coast Guard to enforce the
suspension of the entry of undocumented aliens into the United States by sea.
It also authorized the Coast Guard to interdict certain defined vessels for this
purpose if they were suspected of being involved in the "irregular transport of
people," 31 or other violations of United States law on the high seas (including,
but not limited to the IN A), and to return the vessel and transport its
passengers to the country from which they came. The defined vessels included
"[vjessels of foreign nations with whom [the United States has] arrangements
authorizing the United States to stop and board such vessels." 32 By its terms,
the Executive Order authorized these actions only outside the territorial waters
of the United States.
The United States and Haiti had entered into a bilateral agreement on 23
September 1981, 33 six days before Executive Order 12,324 was signed. That
agreement applied to private Haitian vessels on the high seas when there was
reason to believe that such vessels were involved in the irregular carriage of
passengers outbound from Haiti. It gave the United States permission to board
such vessels to determine their registry, condition, and destination, as well as
the status of those on board. When the circumstances suggested that a
violation of U.S. immigration laws had been or was being committed, the vessel
and persons on board could be detained and returned to Haiti upon prior
notification to the Haitian government. Haiti also gave assurances that
interdicted Haitians would not be prosecuted for illegal departure.
Interdiction of migrants at sea may be accomplished in departure, transit, or
arrival zones. However, forward deployment of available Coast Guard
resources, as opposed to waiting to interdict at or near landfall in the United
States, is preferred for several reasons. First, the vessels used by migrants are
usually grossly overloaded, unseaworthy, and incapable of making the 700-mile
trip from Haiti to the United States without risking substantial loss of life.
Second, aliens residing illegally in the United States or arriving at the border
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Guarding the Coast
were entitled under former §243 (h) of the IN A to a deportation or exclusion
hearing. The differences between exclusion and deportation, and the varying
procedural protections attached to each, depended upon whether the alien
had made an "entry" into the United States. 34 Aliens making an entry were
entitled to deportation proceedings. Those seeking admission upon arrival, but
prior to "entry," 35 could have their status determined at an exclusion
proceeding. Since §243 did not by its terms have extraterritorial application, 36
migrants interdicted at sea were not afforded access to either of these
processes. 37
The best reason to interdict migrants at sea, however, is that it saves lives.
Without the nearly constant presence of a Coast Guard cutter in relative
proximity to the territorial sea of Haiti, many migrants bound for the United
States would die. Haitian migrant vessels are typically crude, handmade,
wooden-hulled vessels. 38 Primarily, they are lateen or sloop-rigged sailing
vessels of 30-50 feet in length, or more substantial double-decked,
wooden-hulled freighters, 50-80 feet in length, with high, upswept bows, and a
large deck house aft. The latter are generally powered by unreliable engines
prone to mechanical failure. Most do not carry charts, compass, or navigational
instruments of any kind. Navigation is based primarily on following the
prevailing winds, wave patterns, and changes in water color along the Bahama
Bank until the loom of light from Miami is seen on the night horizon. Due to
the large number of people on board (some may carry as many as six to eight
persons for every foot of deck length) and complete lack of sanitary facilities,
conditions on the vessels are typically appalling. Cooking, if any, may be done
over open charcoal fires, and some vessels even carry live goats as provisions.
The vessels usually have little freeboard due to their overloaded condition, and
constant flooding results.
After the migrants are removed, the vessels normally cannot be towed, due
to either their physical condition or the presence o( large numbers oi migrants
on the Coast Guard cutter. Rather than be left adrift as derelicts, where they
could constitute a potentially deadly hazard to navigation, these vessels are
usually destroyed. The vessels are at times unsinkable with gunfire or ramming,
because the inherent natural buoyancy of their wooden construction often
keeps them floating just below the surface despite the infliction of major
damage. As a result, most cutters resort to burning the vessels to the waterline,
then breaking up the remains by ramming or other means to minimize the size
of the debris.
Executive Order 12,324 expressly prohibited the return of any refugee
without their consent. 39 As a result, migrants interdicted on the high seas
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Gary W. Palmer
pursuant to the Executive Order had to be screened for colorable claims to
refugee status. For that purpose, Coast Guard cutters on patrol in the
Windward Passage between Cuba and Haiti initially had INS agents and
Creole-speaking interpreters assigned. When a cutter came upon an
overloaded and unseaworthy Haitian vessel bound for the United States, the
migrants were taken on board the cutter, given an abbreviated medical
examination, issued a blanket, and fed a meal (typically of beans and rice) . Due
to space limitations, the migrants were normally kept on the flight deck,
forecastle, or fantail of the cutter. 40 The cutter's crew would attempt to rig
awnings to shelter the migrants as best they could from the effects of wind,
weather, and the hot Caribbean sun beating on the steel decks of the cutter.
The cutters also carried or improvised portable toilets, and otherwise
attempted to treat the migrants with as much dignity as possible.
Under Executive Order 12,324, the migrants were individually interviewed
by INS agents while onboard the cutter to determine if any had potentially
valid claims to refugee status. This process often took days. While their status
was being decided, the cutter remained at sea and out of sight of land. As time
wore on, the migrants sometimes became impatient. With overcrowding,
discontent, boredom, and the prospect of an imminent return to Haiti rather
than the promise of arrival in Miami, some migrants even became belligerent. 41
Disturbances sometimes broke out on Coast Guard cutters that in a few
instances had to be quelled through the use of physical restraints, fire hoses, or
chemical agents such as CURB 60 42 or pepper spray.
After the interview process was complete, those who were determined to be
economic migrants were "screened out" and repatriated. Repatriations usually
took place dockside in Port au Prince, where the Haitians were turned over to
the Red Cross. Those who made a colorable claim of status as a political refugee
were "screened in" and transported to the United States so that they could file
a formal application for political asylum.
Between 1981 and 1991, approximately 25,000 Haitian migrants were
interdicted by the Coast Guard. Then, on 30 September 1991, a military coup
succeeded in overthrowing the Aristide government. In response to the
subsequent killing and torture of hundreds of Haitians who opposed the
military regime, a flood of migrants bound for the United States soon
overwhelmed both the existing operational posture of the Coast Guard and the
ability of the INS to screen the migrants for potential refugee status as required
by Executive Order 12,324.
Executive Order 12,324 was superseded by Executive Order 12,807 on May
23, 1992. The primary difference between the two was that Executive Order
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Guarding the Coast
12,807 no longer contained a requirement to screen migrants interdicted at sea
for refugee status. In addressing a challenge to the new Executive Order on this
ground, the Supreme Court said:
During the six months after October 1991, the Coast Guard interdicted over
34,000 Haitians. Because so many interdicted Haitians could not be safely
processed on Coast Guard cutters, the Department of Defense established
temporary facilities at the United States Naval Base at Guantanamo Bay, Cuba,
to accommodate them during the screening process. Those temporary facilities,
however, had a capacity of only about 12,500 persons. In the first three weeks of
May 1992, the Coast Guard intercepted 127 vessels (many of which were
considered unseaworthy, overcrowded, and unsafe); those vessels carried 10,497
undocumented aliens. On May 22, 1992, the United States Navy determined
that no additional migrants could safely be accommodated at Guantanamo.
With both the facilities at Guantanamo and available Coast Guard cutters
saturated, and with the number of Haitian emigrants in unseaworthy craft
increasing (many had drowned as they attempted the trip to Florida), the
Government could no longer both protect our borders and offer the Haitians
even a modified screening process. It had to chose between allowing Haitians
into the United States for the screening process or repatriating them without
giving them any opportunity to establish their qualifications as refugees. In the
judgment of the President's advisors, the first choice would not only have
defeated the original purpose of the program (controlling illegal immigration),
but also would have impeded diplomatic efforts to restore democratic
government in Haiti and would have posed a life threatening danger to
thousands of persons embarking on long voyages in dangerous crafts. The second
choice would have advocated those policies but deprived the fleeing Haitians of
any screening process. . . .
On May 23, 1992, President Bush adopted the second choice. After assuming
office, President Clinton decided not to modify that order; it remains in effect
today. 44
The terms of Executive Order 12,807 provided for the repatriation of
undocumented aliens without the benefit of any screening process. It also
stated that the "non-refoulement" 45 obligations of the United States under
Article 33 of the United Nations Convention Relating to the Status of
Refugees 46 do not extend to persons located outside the United States. The
Executive Order again directed the Secretary of Transportation to issue
appropriate instructions to the Coast Guard to enforce the suspension of the
entry of undocumented aliens by sea and to interdict defined vessels carrying
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Gary W. Palmer
such aliens. These instructions were to include directives to "return the vessel
and its passengers to the country from which it came, or to another country . . .
provided, however, that the Attorney General, in his unreviewable discretion,
may decide that a person who is a refugee will not be returned without his
4- "47
consent.
There have been a number of legal challenges to the Coast Guard's
interdiction and repatriation of Haitian migrants at sea under both Executive
Orders. In 1985, the District Court for the District of Columbia denied such a
challenge to Executive Order 12,324, finding that §243 (h) of the INA applied
only to those Haitians who were already in the United States. 48 The next
challenge came in 1991, alleging that the Government had failed to establish
and implement adequate procedures to protect Haitians who qualified for
asylum. The Eleventh Circuit Court of Appeals held that since Executive
Order 12,324 did not limit the discretion of INS officials, migrants interdicted
at sea could not obtain judicial review of INS decisions. 49 That court also held
that the INA did not apply extra-territorially.
President Bush's promulgation of Executive Order 12,807 precipitated
another round of legal challenges. The Supreme Court resolved those
challenges by holding that repatriating migrants to Haiti without first
determining whether they qualified as refugees was not prohibited by either
§243 of the INA or Article 33 of the United Nations Convention Relating to
the Status of Refugees. 50 The court found that since neither of those provisions
had extra-territorial application, migrants interdicted at sea were not entitled
to either deportation or exclusion hearings. Therefore, there is nothing in
domestic or international law which prevents the President or the Attorney
General from involuntarily repatriating undocumented aliens interdicted at
sea. 51
During fiscal year 1992 the Coast Guard interdicted 37,618 Haitian
migrants. In response to the Haitian exodus, Operation Able Manner
commenced on 15 June 1993 and was, at that time, the largest single peacetime
operation in the history of the Coast Guard. It involved virtually every Coast
Guard unit along the Atlantic and Gulf coasts. Today, Haitian migration has
stabilized at an average of about 150 to 300 migrants a month, with occasional
peaks in excess of those amounts. On 24 November 1997, 416 Haitians on an
80-foot wooden-hulled freighter were intercepted approximately six nautical
miles southeast of Miami Beach. 52 The vessel refused to stop until shouldered
by the Coast Guard Cutter Maui, a 1 10-foot patrol boat, which prevented the
migrants from entering the United States. This was the largest single group of
migrants interdicted since November 1995. All were repatriated to Port au
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Guarding the Coast
Prince, except for a pregnant, nineteen-year-old female suffering from
dehydration and possible pneumonia, who was brought to Miami for medical
treatment.
Despite the fact that there has been no formal agreement in place since
1994, when the 1981 Agreement was terminated by President Aristide
according to its terms, Haiti continues to permit repatriation of all Haitian
migrants interdicted by the Coast Guard at sea. Since the original interdiction
agreement was entered into by the totalitarian Duvalier regime and abrogated
by the democratic government of Aristide, any new standing interdiction
agreement appears unlikely in the near future. United Nations peacekeeping
forces assisted in recent elections in Haiti, but the results were tainted by fraud,
essentially leaving Haiti without an effective government since the resignation
of Premier Rosny Smarth in June of 1997. 53 With the departure of United
Nations peacekeeping forces on 1 December 1997, a refusal by the Haitian
government to accept the return of migrants for any reason could precipitate
another mass exodus and have far-reaching consequences for both the United
States and the Coast Guard.
Cuban Migrant Interdiction Operations
When Fidel Castro opened the port of Camarioca in 1965, over 6,000
Cubans fled to the United States. 54 After one of the vessels capsized, President
Lyndon Johnson commenced eight years of "Freedom Flights," in which over a
quarter million Cubans immigrated to the United States.
In 1980, the Mariel Boatlift brought more than 100,000 Cubans to U.S.
shores. These Cuban migrants enjoyed a special status that the Haitian
migrants did not. Unlike the Haitians, the Cuban Refugee Adjustment Act 55
permitted the Attorney General to grant permanent resident status to Cuban
citizens present in the United States for at least one year. President Carter
permitted the "Marielitos" to enter the United States, and Castro took full
political advantage of this opportunity to rid Cuba of many criminals, mentally
ill persons, and others that he considered to be undesirable elements.
In the years after the Mariel Boatlift, migrant attempts to evade Cuban
authorities and reach the United States persisted on a small scale, but one
which progressively increased in magnitude. Then, on 8 August 1994, Fidel
Castro announced that the Cuban government would no longer forcibly
prevent Cuban citizens from emigrating by boat. This policy precipitated a
flood of "balseros" aboard homemade rafts and boats attempting to negotiate
ninety treacherous miles across the Gulf Stream to the United States. In two
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Gary W. Palmer
weeks, more than 2,700 Cubans were rescued by the units of Operation Able
Vigil, with the rate of rescue at times reaching nearly 750 per day. 56 Many were
lost at sea.
In a press conference on 19 August 1994, President Clinton stated:
In recent weeks the Castro regime has encouraged Cubans to take to the sea in
unsafe vessels to escape their nation's internal problems. In so doing, it has risked
the lives of thousands of Cubans, and several have already died in their efforts to
leave. This action is a cold-blooded attempt to maintain the Castro grip on Cuba,
and to divert attention from his failed communist policies. He has tried to export
to the United States the political and economic crisis he has created in Cuba, in
defiance of the democratic tide flowing throughout this region. Let me be clear:
The Cuban government will not succeed in any attempt to dictate American
immigration policy. The United States will do everything within its power to
ensure that Cuban lives are saved and that the current outflow of refugees is
stopped. 57
In order to stem the tide of Cuban migrants and prevent further loss of life,
the policy that provided for permanent resident status was terminated.
President Clinton also ordered the Coast Guard to interdict Cubans at sea and
transport them to Guantanamo Bay, where they received treatment similar to
Haitian migrants interdicted at sea. From there, the United States engaged in a
program of voluntary repatriations while negotiating with other countries to
accept migrants into safe havens. By the end of fiscal year 1994, a total of
38,560 Cuban migrants were interdicted. 58 This exceeded the total number of
Haitians interdicted during the mass exodus of fiscal year 1992.
Further negotiations with the Cuban government resulted in a joint
communique between the United States and Cuba on 2 May 1995. 59 In this
communique, the United States agreed to allow Cuban migrants to enter the
United States only by applying for a visa or refugee status at the United States
Interests Section in Havana. It further permits 20fi00 Cubans per year to enter
the United States legally. This agreement has facilitated the direct repatriation
of approximately 75 percent of all Cubans intercepted at sea, 60 with the
remainder going to Guantanamo or to the United States at the direction of the
INS. 61 It also reaffirmed a commitment to hvcountry processing of refugee
claims through the United States Interests Section in Havana. This policy has
achieved its purpose of deterring dangerous migration from Cuba by boat by
offering a safe alternative. 62 Since the 2 May 1995 accord, illegal migration
from Cuba has been significantly reduced and remains relatively stable at about
thirty to fifty migrants per month. 63
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Guarding the Coast
A legal challenge was asserted to determine whether Cuban migrants
temporarily given safe haven at the United States Naval Base at Guantanamo
Bay could assert rights under the INA and Article 33 of the United Nations
Convention Relating to the Status of Refugees. The Eleventh Circuit Court of
Appeals 64 rejected the argument that leased military bases in foreign countries
(such as Guantanamo Bay) are ports of entry or otherwise "within the United
States" for purposes of the INA. It also held that granting safe haven did not
create a protected liberty interest, the deprivation of which would require the
government to provide due process of law. 65
Dominican Migrant Interdiction Operations
A relatively new development in Coast Guard alien migrant interdiction
operations is the emergence of the Dominican Republic as a major source of
undocumented aliens. Puerto Rico lies sixty miles beyond the east coast of the
Dominican Republic. Migrants navigate the Mona Passage in small, open,
wooden boats known as "yolas," powered by outboard motors. They are often
camouflaged, covered with tarps, and drift during daylight hours to avoid
detection. Many of these attempts to enter the United States illegally through
Puerto Rico are organized alien smuggling ventures. Organizers can receive
more than $40,000 for a single run. 66
With the decline in Haitian and Cuban migrants after 1994, the Coast
Guard was able to dedicate more resources to patrolling the Mona Passage.
Between 1994 and 1995, the number of undocumented aliens interdicted by
the Coast Guard in the Mona Passage increased by more than 800 percent,
from 371 to 3,375. 67 Since that time, the Coast Guard has been patrolling the
Mona Pass with a nearly constant presence of several cutters and aircraft.
These efforts resulted in the interdiction of 6,273 Dominicans in fiscal year
1996. When a yola is intercepted, the migrants are typically repatriated to the
Dominican Republic, either by rendezvous and transfer to the Dominican
Navy or by direct dockside repatriation in the Dominican Republic.
A recent case illustrates the role of the Coast Guard in the Mona Passage.
On 5 February 1997, the Coast Guard cutter Courageous was participating in
Operation Frontier Shield 68 in the Mona Passage. They spotted an overloaded,
50-foot yola approximately 35 miles west of Puerto Rico. The cutter
immediately launched both of its small boats. While they were handing out
lifejackets to the migrants in preparation for their transfer to the cutter, the
yola capsized, and 108 persons ended up in the water. One drowned, and three
170
Gary W. Palmer
were reported missing. The others were transferred to the INS in San Juan,
Puerto Rico, three days later.
The four Dominicans who coordinated the smuggling venture were indicted
on 12 February 1997 for attempting to bring aliens into the United States
illegally. The indictment charged them with violations of 8 USC
§1324(a)(l)(A)(i), §1324(a)(l)(B)(iv), and 18 USC §2. 69 They were held
without bail, and if convicted, the four defendants could possibly receive the
death penalty. As of this writing, the case is pending trial in the United States
District Court for the District of Puerto Rico.
Chinese Migrant Interdiction Operations
Some rime after midnight on 6 June 1993, the MA^ Golden Venture ran
aground on a sandbar approximately 100 yards off Long Island. State and
federal law enforcement agencies, including the Coast Guard, began arriving
en masse soon thereafter. Some of the 286 Chinese migrants on board were
observed r iraing on the beach, with others attempting to swim ashore in the
53 Q F wate About 100 remained on the ship awaiting rescue. About 30 made it
into the s ounding community. The others were detained in the custody of
the INS. Exclusion proceedings were brought against the detainees, many of
whom applied for political asylum. The legal issue raised by those proceedings
was whe he : the Chinese were entitled to a deportation hearing by virtue of
having "entered" the United States. In resolving the claims of those on board
the MA^ Golden Venture, the Court of Appeals in Yang v. Maugans 10 held that
despite the fact that some migrants were walking ashore though the surf when
appreheis I d, a person does not make an "entry" into the United States for
purposes of INA deportation hearing entitlements until they are physically
present on "dry land."
Another case illustrates the problems involved in repatriating Chinese
migrants interdicted on the high seas. Based on information obtained by an
undercover agent for the INS during a complex sting operation, the Coast
Guard cutter Reliance intercepted the V17V Xing Da on 2 October 1996. The
vessel was approximately 130 miles northeast of Bermuda, and, in addition to
26 crew members, had 83 illegal Chinese migrants in the ship's cargo hold. The
migrants had been in the cargo hold of the rusty, 220-foot freighter since it left
China's Guang Zhou province more than three months previously on a voyage
to a planned rendezvous in the Atlantic Ocean via Africa's Cape of Good
Hope. A fishing vessel was then to embark the migrants and land them
somewhere near Boston. 71
171
Guarding the Coast
When the M/V Xing Da was first hailed on the radio by the Coast Guard, a
person purporting to be the master consented to a Coast Guard boarding. The
vessel flew no flag but had markings on the hull indicating the home port of the
vessel was in the People's Republic of China (PRC). The "master" also claimed
to be a PRC citizen. Documents were found on board which, while
inconclusive, gave indications that the vessel might be validly registered in the
PRC. Therefore, the Coast Guard requested through diplomatic channels that
the PRC government confirm the registry of the vessel and grant permission for
United States authorities to take any action necessary to insure the safety of
those onboard.
Some of the migrants were severely dehydrated and water had to be brought
to the vessel. The decks were littered with debris and garbage. The vessel was
also plagued with mechanical problems, had no electricity, and its bilge was
filled with fuel that had leaked from the tanks. Soon after the Coast Guard
boarding team came aboard, the migrants began setting fires and banging on
the hull in an apparent attempt to sink the vessel. It was believed that the
trouble was incited by enforcers called "snake heads," who hoped to force the
Coast Guard to bring them ashore in the United States. 72 These migrants
frequently pay up to $30,000 for their transportation and, in return, must
liquidate their debt by working for the organizers at rates often below minimum
wage for as long as 10 years. 73
The PRC government had some information about a vessel with the same
name, but claimed they needed additional time to confirm the vessel's
nationality as PRC. They did, however, give their consent for the United States
to take whatever action was deemed necessary to ensure the safety of those on
board in the interim. The government of Bermuda reluctantly permitted the
Coast Guard to anchor the vessel temporarily as long as the migrants were
removed from Bermuda as soon as possible. Consistent with the consent
granted by the PRC to ensure the safety of those on board, they were
transported to Guantanamo Bay for processing and eventually returned to the
PRC by way of Wake Island. 74
It soon became apparent that the PRC government did not intend to
unequivocally confirm the vessel's registry. The United States then informed
them that unless they objected within a certain time, the vessel would be
declared stateless and seized under United States law. 75 Approximately two
weeks after the initial interdiction, the vessel was assimilated to a stateless
vessel and became subject to the full jurisdiction of the United States.
Because of the distances involved, interdiction o{ Chinese migrant vessels
are often resource intensive and come at a very high cost. The M/V Jung Sheng
172
Gary W. Palmer
#8 was first sighted on 27 June 1995, nearly 1,000 miles southeast of Hawaii.
The interdiction operation involved three Coast Guard cutters, a C-130
aircraft, an H-65 helicopter, and numerous land-based support personnel. The
operation took forty-five days and covered 6,000 miles. The 147 migrants were
transported to Wake Island, where a Joint Task Force had to be established to
facilitate the return of the migrants to the PRC. It is estimated that the total
cost of the interdiction of these 147 migrants exceeded $11 million. 76
On 12 August 1997, the 150-foot merchant vessel, Lapas No. 3, was
intercepted 200 miles south of San Diego with sixty-nine illegal Chinese
migrants on board. The vessel had weathered three typhoons and was nearly
out of food and fuel. Coast Guard units stayed on scene for more than two
weeks providing food, water, and medical assistance. The Mexican
government eventually agreed to tow the vessel to Mexico, where the migrants
were then repatriated to China.
The Illegal Immigration Reform
and Immigrant Responsibility Act of 1996
On 30 September 1996, President Clinton signed the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA). 77 The entire
system for deportation and exclusion of aliens was substantially modified. The
concept of "entry" was replaced by "admission," which means the lawful entry
of an alien into the United States after inspection by an immigration officer.
IIRIRA §304 replaced both deportation and exclusion hearings with a single
streamlined "removal proceeding." 78
Section 302 establishes a summary screening program which permits an INS
officer to determine an alien inadmissible and order him or her removed from
the United States without further hearing or judicial review. If such an alien
indicates an intention to apply for asylum, the case must be referred to an
asylum officer to conduct a "credible fear of persecution" screening to
determine whether there is a significant possibility that the alien could
establish eligibility for asylum.
Under §302 an alien "present in the United States" is entitled to a removal
proceeding which results in either admission, asylum, or removal. 79 But,
determining whether an alien is "present in the United States" by using the
"dry land" standard adopted by the court in Yang may not provide clear
guidance to the Coast Guard in determining when an alien may be repatriated
and when they have acquired a right to a removal proceeding. For example,
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Guarding the Coast
aliens on board a moored vessel, who disembark onto a pier, or who come
ashore and then later return to their vessel, may not be on "dry land."
Certain provisions of the IIRIRA have the potential for significant impact
on Coast Guard alien migrant interdiction operations. For example, 8 USC
§ 1 23 1 (c) and (d) make the owner or commanding officer of a vessel or aircraft
bringing an alien into the United States personally responsible for transporting
an alien to the foreign country to which they are ordered removed. It also
makes the owner or commanding officer financially responsible for the costs of
both detaining and repatriating the alien. The statute does not explicitly
provide for an exception to this requirement for public vessels. This mandate
could place a large potential burden on the limited financial and operational
resources of the Coast Guard. It could also discourage good Samaritans from
complying with their legal obligations under both 46 USC §2304 and
customary international law to render assistance to those in peril on the sea.
Requiring a good Samaritan to bear the financial burden of detention and
repatriation would unfairly penalize him or her for undertaking a rescue of
anyone whose immigration status is uncertain. A direct result of this
disincentive could be a greater demand on Coast Guard resources for search
and rescue operations.
"Expedited removal" is another provision of IIRIRA, which could have the
potential for significant impact on Coast Guard alien migrant interdiction
operations. It was created by §302, 80 which amends 8 USC § 1 225 to provide for
a streamlined removal procedure of "applicants for admission" who are deemed
inadmissible by an immigration officer. This procedure took effect on 1 April
1997. Applicants for admission include aliens brought into the United States
after having been interdicted at sea. 81 An applicant may be deemed
inadmissible for attempting to enter the United States through
misrepresentation, fraud, or without valid travel and/or visa documents. Such
applicants for admission may be removed without further hearing, appeal, or
judicial review unless they affirmatively indicate either an intention to apply
for asylum, or a fear of persecution if returned. 82 Once ordered removed,
removal must take place within ninety days.
The IIRIRA also includes mass migration provisions in §372 which provide:
In the event the Attorney General determines that an actual or imminent influx of
aliens arriving off the coast of the United States, or near a land border, presents
urgent circumstances requiring an immediate federal response, the Attorney
General may authorize any State or local law enforcement officer ... to perform or
exercise any of the powers, privileges, or duties conferred or imposed by this chapter
or regulations issued hereunder upon officers or employees o( the Service. 83
174
Gary W. Palmer
Section 372 could help avoid backlogs in the removal process during mass
migrations, such as those from Haiti and Cuba, by ensuring that sufficient
resources are made available for making admissibility determinations when
necessary.
From the Coast Guard's perspective, expedited removal could help reduce the
resource burden during alien interdictions by obviating the need for cutters to be
used as holding platforms. Once saturated with migrants, a cutter ceases to
become an effective operational unit, and must focus all its efforts internally on
the care, feeding, and security of the migrants. Using the expedited removal
provisions, cutters could bring or transfer aliens into the United States for further
return to their country of origin by another agency without implicating
comprehensive and burdensome hearing entitlements. This would enable the
cutters to perform their primary mission in their area of responsibility for longer
periods of time, rather than merely acting as an inadequate holding facility with
migrants on board for extended periods awaiting disposition and transportation.
Whether or not these new procedures are expeditious in practice remains to
be seen. If an interview is required to determine whether an applicant for
admission has a credible fear of persecution, the applicant may request review
by an immigration judge. This review must occur within seven days. While the
immigration judge's decision is intended to be final, such administrative
decisions have generally been held to be subject to judicial review. Litigation
may be required to resolve this issue and could delay or prevent full
implementation of the expedited removal procedures. In addition, another
mass migration by sea could create a backlog of applicants burdening the
system. This might make it impossible to meet the established timelines in the
regulations and create political pressure from adversely affected communities.
Except where the time and distance involved in direct repatriation is
extraordinary, transportation of migrants interdicted at sea back to the United
States for expedited removal by forward deployed Coast Guard cutters may be
more resource intensive, logistically burdensome, and result in no net tactical
advantage. As a result, expedited removal appears best suited for those
migrants who manage to elude at-sea interdiction but for some reason arrive at
a port of entry. It does not appear likely to replace the need for continuing
Coast Guard operations to interdict and repatriate illegal alien migrants at sea.
Notes
An earlier version of this article appeared at 29 Connecticut Law Review 1565 (1997).
The author gratefully acknowledges the assistance of Lieutenant Rachel Canty, U.S.
Coast Guard Reserve and Lieutenant Commander Anthony Gentillela, U.S. Coast
175
Guarding the Coast
Guard. The views expressed herein are those of the author and do not necessarily express
those of the United States Coast Guard.
1. 63 Stat. 495 (1949).
2. Despite the broad nature of the authority conferred by this statute, courts have
consistently upheld its constitutionality. See, e.g.: United States v. Freeman, 660 F. 2d 1030 (5th
Cir.), cert, denied 459 U.S. 823 (1981); United States v. One (1) 43 Foot Sailing Vessel "Winds
Will," License O.N. 531317/US, 538 F. 2d 694 (5th Cir. 1976); United States v. Erwin, 602 F. 2d
1183 (5th Cir.), rehearing denied 602 F. 2d 992, cert, denied 444 U.S. 1071, rehearing denied 445
U.S. 972 (1979).
3. See "An Act to Define the Jurisdiction of the Coast Guard," Pub. L. No. 74-755, 49 Stat.
1820 (1936).
4. 274 U.S. 501 (1927).
5. Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 2 L. Ed. 208 (1804).
6. 13 U.S.T. 2312, T.I.A.S. 5200 (entered into force September 30, 1962).
7. U.N. Doc. A/CONF. 62/122 (1982) [hereinafter LOS Convention].
8. Presidential Proclamation No. 5030 of March 10, 1983, 48 Fed. Reg. 10605 (1983). The
United States did not sign the 1982 LOS Convention because of its view that there were major
problems in the deep seabed mining provisions that were contrary to the interests and principles
of industrialized nations.
9. Geneva Convention on the High Seas, Apr. 29, 1958, art. 22; [hereinafter High Seas
Convention]; 1982 LOS Convention supra note 7, art. 110.
10. Other exceptions to exclusive flag state jurisdiction on the high seas include hot pursuit
and the related concept of constructive presence (High Seas Convention, art. 23; 1982 LOS
CONVENTION, art. 1 1 1), as well as additional exceptions during armed conflict regarding rights
and duties of neutrals and belligerents. See also RESTATEMENT (THIRD) OF FOREIGN
RELATIONS §522 (1987).
1 1 . While the master of a vessel may consent to a boarding and other actions once on board
(such as the search of various compartments) , the master does not have the authority to waive
the exclusive jurisdiction of the flag state or to consent to the exercise of complete criminal
jurisdiction by the United States.
12. S. TREATY DOC. NO. 103-39 (1994). On July 29, 1994, the United States signed the
Agreement Relating to the Implementation of Part IX of the United Nations Convention on the
Law of the Sea. This agreement fundamentally changed the deep seabed mining provisions of the
LOS Convention, and removed or amended the provisions to which the United States was most
opposed. See also Marian Nash (Leich), U.S. Practice: Contemporary Practice of the United States
Relating to International Law, 89 AM. J. INT'L L. 96, 112 (1995).
13. See also United States v. Hensel , 699 F. 2d 18 (1st Cir.), cert, denied 464 U.S. 824 (1983) ;
United States v. Marsh, 747 F. 2d 7, 9 (1st Cir. 1984); United States v. Crews, 605 F. Supp. 730,
736 (S.D. Fla. 1985), affd United States v. McGill, 800 F. 2d 264 (11th Cir. 1986).
14. Almeida-Sanchez v. United States, 413 U.S. 266, 272 (1973).
15. Pub. L. No. 104-208, 110 Stat. 3009 (1996).
16. 8 U.S.C. §§1101-1525 (1994).
17. 8 U.S.C. §1252(1994).
18. 8 U.S.C. §§1225, 1226(1994).
19. 8 U.S.C. §1101 (a) (13) (1994). Nothing in the statutory scheme accords any procedural
rights to aliens before reaching a port. Therefore, for purposes of the IN A the ports of the United
States function as the border, rather than the limits of the territorial sea.
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Gary W. Palmer
20. Haitian Refugee Center v. Gracey, 600 F. Supp. 1396 (D.D.C. 1985), affd on other
grounds, 809 F. 2d 794 (D.C. Cir 1987).
21. 8 U.S.C. §§1157, 1158 (1994).
22. 8. U.S.C. § 1253(h)(1) as amended by §203(e) of the Refugee Act of 1980, Pub. L.
96-212, 94 Stat. 107.
23. 17 S. REP. NO. 256, 96th Cong., 1st Sess. (1979)
24. Jul. 28, 1951, 19 U.S.T. 6259.
25. Jan. 31, 1967, 19 U.S.T. 6223.
26. Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993).
27. This exodus only temporarily subsided with the overthrow of Duvalier in the mid-1980s,
and the eventual popular democratic election of President Jean-Bertrand Aristide.
28. 46 Fed. Reg. 48109 (1981).
29. See also Presidential Proclamation No. 4865, 3 C.F.R. §50, 51 (1981-1983 Comp.).
30. Haitian Refugee Center v. Gracey, supra, note 20.
31. Supra, note 28.
32. Id.
33. 33 U.S.T. 3559, T.I.A.S. No. 10241. The 1981 Agreement with Haiti was terminated by
President Aristide in 1994 according to its terms.
34. "Entry" was defined as "any coming of an alien onto the United States from a foreign port
or place or from an outlying possession, whether voluntarily or otherwise. ..." 8 U.S.C.
§1101(a)(13) (1994).
35. Id.
36. 8 U.S.C. §1253(h) (1988).
37. For a more complete discussion of the specific entitlements under both exclusion and
deportation proceedings, see Landon v. Plasencia, 459 U.S. 21, 26-27 (1982).
38. The following descriptions of Haitian migrant vessels and conditions on board are based
on the author's firsthand observations while conducting extensive alien migrant interdiction
operations off the coasts of Haiti and Cuba as Executive Officer, USCGC Vigorous (WMEC 626)
from 1985-1987, and as Commanding Officer, USCGC Dependable (WMEC 626), from
1990-1992.
39. A refugee as defined in 8 U.S.C. §1 101 (a) (42) (A) includes a person unwilling or unable
to return to a country because of a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.
40. The cutters interdicting these aliens ranged in size from 110 feet to 378 feet in length.
They did not have either the facilities, training, or cargo capacity to provide food, shelter,
security, sanitation facilities, and otherwise meet the basic human needs of hundreds of people
for indefinite periods.
41. On January 13-14, 1991, the author interdicted three migrant vessels with a total of 240
Haitians. While on board USCGC Dependable (WMEC 626) awaiting repatriation, the migrants
went on a brief hunger strike and engaged in several organized protests which included loud,
rhythmic chanting. Fighting broke out among several factions of migrants. One migrant with a
knife had to be disarmed by security personnel. Several migrants had to be physically restrained
with leg irons for assaulting other migrants and security personnel. These observations were
recorded in the author's personal journal.
42. Similar to Mace, CURB 60 came in a small, hand-held spray applicator and had an
effective range of about twenty feet. It is no longer used by the Coast Guard. Reports of these
disturbances were noted in the After Action Reports of other cutters, which the author reviewed
177
Guarding the Coast
as part of his official duties as Commanding Officer, USCGC Dependable (WMEC 626), from
June 1990 through January 1992.
43. 57 Fed. Reg. 12133 (1992).
44. Sale, supra, note 26. In upholding the legality of the Order, the Court held that neither
§243 (h) of the INA nor Article 33 of the United Nations Convention Relating to the Status of
Refugees limited the President's power to order the Coast Guard to repatriate undocumented
aliens intercepted on the high seas.
45. The French word "refouler" is not an exact synonym for the English word "return," but
has been interpreted to mean, among other things, "expel." See Sale, id. at 24-25.
46. 19 U.S.T. 6259, T.I.A.S. No. 6577 (1992).
47. Exec. Order No. 12,807, §2(c)(3) (emphasis added).
48. Haitian Refugee Center, Inc. v. Gracey, supra, note 20.
49. Haitian Refugee Center, Inc. v. Baker, 949 F. 2d 1109 (11th Cir. 1991), cert, denied 502
U.S. 1122 (1992).
50. Sale, supra note 26.
51. See also Haitian Refugee Center, Inc. v. Christopher, 43 F. 3d 1431, 1433 (11th Cir.
1995).
52. http:www.dot.gov/dotinfo/uscg/cgnews.html>, November 30, 1997.
53. Michelle Faul, U.N. Peacekeepers Ending Their Three-Year Mission in Haiti Today with
Mixed Results, THE NEW LONDON DAY, Nov. 30, 1997.
54. Michael Lind, Cuban Refugees at Sea: A Legal Twilight Zone 24 CAP. U. L. REV. 789, 793
(1995).
55. Pub. L. No. 89-732, 80 Stat. 1161 (1966).
56. Lind, supra, note 54, at 809.
57. Lind, supra, note 54, at n. 155.
58. Data obtained from Commandant, U. S. Coast Guard, Office of Law Enforcement,
Migrant Interdiction Division, Washington, D.C.
59. DoS: 95426 (May 2, 1995).
60. Data obtained from Commandant, U. S. Coast Guard, Office of Law Enforcement,
Migrant Interdiction Division, Washington, D.C.
61. INS agents generally interview the migrants on the cutter to determine whether they
might be eligible for asylum. Those that meet the threshold requirements are taken to
Guantanamo Bay to gather additional evidence. Some of these migrants may eventually enter
the United States, willingly return to Cuba, or be granted safe haven in a third country.
62. See, supra, note 51, at 1418, n. 2.
63. Data obtained from Commandant, U. S. Coast Guard, Office of Law Enforcement,
Migrant Interdiction Division, Washington, D.C.
64. Haitian Refugee Center, Inc. v. Christopher, supra note 51, at 1425.
65. Id. at 1432.
66. Another indication of the magnitude of these organized alien smuggling ventures is that
the Dominican Republic is now the largest importer of outboard engines in Latin America. See
Changing Tactics in the Mona Pass, COMMANDANTS BULLETIN, COMDT PUB P5720.2, Issue #2
(Feb. 1996), at 4.
67. Id. at 5.
68. Operation Frontier Shield is a large-scale, multiagency counternarcotics operation in the
Greater and Lesser Antilles, which commenced on October 1, 1996. In the first 30 days of the
operation, Coast Guard assets seized more than 4,500 pounds of cocaine and interdicted 124
illegal migrants. The large number of assets dedicated to this operation have reduced migrant
178
Gary W. Palmer
activity in the Mona Passage to its lowest level in nearly 3 years. See Frontier Shield, COAST
GUARD, COMDT PUB P5720.2, Issue #1 Can. 1997), at 2-7.
69. These provisions prohibit any attempt to knowingly land an alien at other than a
designated port of entry without prior official authorization. Capital punishment is authorized for
such an attempt which results in the death of any person.
70. 68 F. 3d 1540 (3rd Cir. 1995).
71. Patricia Nealon, US Says it Halted Smugglers Bringing Chinese to Mass., BOSTON GLOBE,
Oct. 9, 1996.
72. Jules Critten, Slave Ship, BOSTON HERALD, Oct. 9, 1996. Illegal Chinese migration is
often linked to extremely violent criminal organizations in PRC and Taiwan.
73. Id.
74. The INA does not apply in Wake Island. Also, the PRC has generally been unwilling to
agree to repatriation of PRC migrants from third party countries.
75. Bermuda had expressed interest in sinking the vessel as an artificial reef. Seizing the
vessel under United States law helped to facilitate the transfer of title to Bermuda and finance
the cleanup of the vessel.
76. Data obtained from Commandant, U. S. Coast Guard, Office of Law Enforcement,
Migrant Interdiction Division, Washington, D.C.
77. Pub. L. 104-208, 110 Stat. 3009 (1996).
78. 8U.S.C. §1229a (1996).
79. 8 U.S.C. §1225(1996).
80. Pub. L. No. 104-208
81. Cuban citizens arriving by aircraft at a port of entry are exempt from expedited removal.
8 U.S.C. §1225(b)(l)(F) (1996). This exemption also technically applies to other countries in
the Western Hemisphere with which the United States does not have normal diplomatic
relations.
82. This limitation on judicial review may be subject to challenge on due process grounds.
83. 8 U.S.C. §1103(a)(8)(1996).
179
The Maritime Claims Reference Manual
and the Law of Baselines
J. Ashley Roach
Origin of the Maritime Claims Reference Manual
IN 4 MAY 1982, Captain Jack Grunawalt was called to the cabin of
Admiral Bob Long, Commander in Chief, U.S. Pacific Command,
Camp Smith, Hawaii, 1 and asked why the Soviets would be ordering USS
Lockwood (FF-1064) to leave waters of the Soviet Union when the ship was
operating on the high seas more than 12 miles from land and outside Peter the
Great Bay. 2 Jack, who had been off-island when the operation was approved,
knew that in 1957 the USSR had claimed Peter the Great Bay as historic
internal waters of the Soviet Union, defining the bay closing line as the line
connecting the estuary of the Tyumen-Ula River and the Povrotny
promontory. 3 However, in examining the chart illustrating Lockwood's
approved operating area, Jack observed that the closing line had been drawn to
a point further inside the bay than claimed by the Soviets. He noted that the
location of the baseline was not indicated on U.S. nautical charts of the area or
otherwise illustrated in publications available to an assistant who had cleared
Maritime Claims/Law of Baselines
on the plan. Further, he observed the command had no ready authoritative
source listing the coordinates of the claimed bay closing line against which to
verify the location of the closing line. The United States rejected the Soviet
protest of this incident, as it did not recognize the Soviet historic bay claim and
the mouth of the bay far exceeded the maximum permissible length of a bay
closing line. 4
Thereafter, at Jack's urging, Admiral Long sent an urgent message to the Joint
Chiefs of Staff QCS) recommending the Department of Defense (DoD) develop
a manual containing a complete description of the maritime claims made by all
nations, particularly a list of the coordinates of all claimed baselines and closing
lines, that would be available to all the operating forces. The JCS and the Office
of the Secretary of Defense agreed with that recommendation and thus began
work on what has become the DoD Maritime Claims Reference Manual, 5 now in
its third edition. The MCRM, as it is known world-wide, contains summaries, or
in the case of baselines, full texts, of all the maritime claims made by the nations
of the world. In addition, it also indicates the United States' diplomatic and
operational reactions to those claims which are inconsistent with the law of the
sea — hence the term "excessive maritime claims."
Jack's other contributions to the law of the sea are too numerous to catalog
here. But as baselines are the foundation for the measurement of all maritime
zones, it seems appropriate that this tribute present the official views of the
United States on the law of baselines, as based on the Commentary on the Law
of the Sea (LOS) Convention attached to the Secretary of State's letter of 23
September 1994, submitting the Convention and the Part XI Agreement to the
President for transmittal to the Senate for its advice and consent. 6 Because of
the desirability — ne necessity — of achieving a uniform interpretation of those
rules, annotations have been added by the author to provide the rationale for
those views. 7
Background
A State's maritime zones are measured from the baseline. The rules for
drawing baselines are contained in Articles 5 through 11, 13, and 14 of the
LOS Convention. 8 These rules distinguish between normal baselines (following
the low-water mark along the coast) and straight baselines (which can be
employed only in specified geographical situations). 9 The baseline rules take
into account most of the wide variety of geographical conditions existing along
the coastlines of the world. Baseline claims can extend maritime jurisdiction
significantly seaward in a manner that prejudices navigation, overflight, and
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J. Ashley Roach
other interests. 10 Objective application of the baseline rules contained in the
Convention can help prevent excessive claims in the future and encourage
governments to revise existing claims to conform to the relevant criteria. 11
Normal Baseline
The normal baseline used for measuring the breadth of the territorial sea is
the low-water line along the coast as marked on the State's official large-scale
charts. 12 "Low-water line" has been defined as "the intersection of the plane of
low water with the shore. The line along a coast, or beach, to which the sea
recedes at low-water." The actual water level taken as low- water for charting
purposes is known as the level of Chart Datum. 13
Normal baseline claims must be consistent with this rule. Excessive normal
baseline claims include a claim that low-tide elevations, wherever situated,
generate a territorial sea and that artificial islands generate a territorial sea
(e.g., by Egypt and Saudi Arabia). 14
Reefs. In the case of islands situated on atolls or of islands having fringing reefs,
the normal baseline is the seaward low-water line of the drying reef charted as
being above the level of chart datum. 15 While the LOS Convention does not
address reef closing lines, any such line must not adversely affect rights of
passage, freedom of navigation, and other rights provided for in the
Convention.
Straight Baselines
Purpose* The purpose of authorizing the use of straight baselines is to allow the
coastal State, at its discretion, to enclose those waters which, as a result of their
close interrelationship with the land, have the character of internal waters. By
using straight baselines, a State may also eliminate complex patterns, including
enclaves, in its territorial sea, that would otherwise result from the use of
normal baselines. 16 Properly drawn straight baselines do not result in extending
the limits of the territorial sea significantly seaward from those that would
result from the use of normal baselines. 17
With the advent of the exclusive economic zone (EEZ), the original reason
for straight baselines (protection of coastal fishing interests) has all but
disappeared. Their use in a manner that prejudices international navigation,
overflight, and communications interests runs counter to the thrust of the
Convention's strong protection of these interests. In light of the modernization
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of the law of the sea in the Convention, it is reasonable to conclude that, as the
Convention states, straight baselines are not normal baselines, should be used
sparingly, and, where used, should be drawn conservatively to reflect the one
rationale for their use that is consistent with the Convention, namely the
simplification and rationalization of the measurement of the territorial sea and
other maritime zones off highly irregular coasts. 18
Areas of Application. Consequently, international law permits States — in
limited geographical circumstances — to measure the territorial sea and other
national maritime zones from straight baselines drawn between defined points
of the coast. The United States accepts that the two specific geographical
circumstances under which States may employ straight baselines are as
described in Article 7, paragraph 1, of the LOS Convention and Article 4,
paragraph 1, of the 1958 Territorial Sea Convention:
In localities where the coastline is deeply indented and cut into, or if there is a
fringe of islands along the coast in its immediate vicinity, the method of straight
baselines joining appropriate points may be employed in drawing the baseline
from which the breadth of the territorial sea is measured.
If the portion of the coast being examined does not meet either criterion, then
no straight baseline segment may lawfully be drawn in that locality, and the other
rules (on permissible basepoints, the vector of the putative straight baseline in
relation to the coast, and the requisite quality of the waters that would be
enclosed) may not be invoked. 19 Further, the coastal State must fulfill all the
requirements of one test or the other, and may not mix the requirements. For
example, a State may not claim that a locality is indented, though not deeply, and
that it has some islands, though they do not constitute a fringe, and claim it may
draw straight baselines in that locality. Either test selected must be met entirely on
its own terms. If a coastal State cannot establish that its coastline in the locality in
which the straight baseline is sought is deeply indented and cut into or fringed with
islands in the immediate vicinity, it may not proceed to identify appropriate
straight baselines, for none are authorized to be drawn there. Rather, it must use as
a baseline in that locality its low-water mark. Failure to meet this preliminary
geographical test in one locality does not preclude establishing it in another. °
Even if the basic geographic criteria exist in any particular locality, the coastal
State is not obliged to employ the method of straight baselines, but may (like the
United States and other countries) instead continue to use the normal baseline
and permissible closing lines across the mouths of rivers and bays.
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J. Ashley Roach
Localities Where the Coastline is Deeply Indented and Cut Into. "Deeply
indented and cut into" refers to a very distinctive coastal configuration. The
United States has taken the position that such a configuration must fulfill all of
the following characteristics: 21
1) in a locality where the coastline is deeply indented and cut into, there exist at
least three deep indentations; 22
2) the deep indentations are in close proximity to one another; 23 and
3) the depth of penetration of each deep indentation from the proposed straight
baseline enclosing the indentation at its entrance to the sea is, as a rule, greater
than half the length of that baseline segment. 24
The "coastline" is the mean low-water line along the coast; the term
"localities" refers to particular segments of the coastline. 25
Fringe of Islands Along the Coast in its Immediate Vicinity. "Fringe of islands
along the coast in its immediate vicinity" refers to a number of islands and not
to other features that do not meet the definition of an island contained in
Article 121(1) of the LOS Convention. 26 The United States has taken the
position that a such a fringe of islands must meet all of the following
requirements: 27
1) the most landward point of each island lies no more than 24 miles from the
mainland coastline; 28
2) each island to which a straight baseline is to be drawn is not more than 24
miles apart from the island from which the straight baseline is drawn; 29 and
3) the islands, as a whole, mask at least 50 percent of the mainland coastline in
any given locality. 30
Criteria for Drawing Straight Baseline Segments. The United States has taken
the position that, to be consistent with Article 7(3) of the LOS Convention,
straight baseline segments must:
1) not depart to any appreciable extent from the general direction of the
coastline, by reference to general direction lines which in each locality shall not
exceed 60 miles in length; 31
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Maritime Claims/Law of Baselines
2) not exceed 24 miles in length; and
3) result in sea areas situated landward of the straight baseline segments that are
sufficiently closely linked to the land domain to be subject to the regime of
internal waters. 33
Minor Deviations. Straight baselines drawn with minor deviations from the
foregoing criteria are not necessarily inconsistent with the Convention. 34
Economic Interests. Economic interests alone cannot justify the location of
particular straight baselines. 35 In determining the alignment of particular
straight baseline segments of a baseline system which satisfies the deeply
indented or fringing islands criteria, only those economic interests may be
taken into account which are peculiar to the region concerned, and only when
the reality and importance of the economic interests are clearly evidenced by
long usage. 36
Basepoints. Except as noted in Article 7(4) of the LOS Convention,
basepoints for all straight baselines must be located on land territory and
situated on or landward of the low-water line. No straight baseline segment
may be drawn to a basepoint located on the land territory of another State. 37
Use of Low-Tide Elevations as Basepoints in a System of Straight Baselines. A
low-tide elevation is a naturally formed land area surrounded by water and
which remains above water at low tide but is submerged at high tide. 38 Low-tide
elevations can be mud flats or sand bars. In accordance with Article 7(4), only
those low-tide elevations which have had lighthouses or similar installations
built on them may be used as basepoints for establishing straight baselines. 39
Other low-tide elevations may not be used as basepoints unless the drawing of
baselines to and from them has received general international recognition. 40
The United States has taken the position that "similar installations" are those
that are permanent, substantial, and actually used for safety of navigation and
that "general international recognition" includes recognition by the major
maritime users over a period of time. 41
Effect on Other States. Article 7 (6) of the LOS Convention provides that a
State may not apply the system of straight baselines in such a manner as to cut
off the territorial sea of another State from the high seas or an EEZ. 42 In
addition, Article 8(2) of the LOS Convention provides that, where the
establishment of a straight baseline has the effect o( enclosing as internal
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J. Ashley Roach
waters areas which had not previously been considered as such, a right of
innocent passage as provided in the Convention shall exist in those waters. 43
Article 35(a) of the LOS Convention has the same effect with respect to the
right of transit passage through straits.
Unstable Coastlines. Where the coastline, which is deeply indented and cut
into or fringed with islands in its immediate vicinity, is also highly unstable
because of the presence of a delta or other natural conditions, the appropriate
basepoints may be located along the furthest seaward extent of the low-water
line. The straight baseline segments drawn joining these basepoints remain
effective, notwithstanding subsequent regression of the low-water line, until
the baseline segments are changed by the coastal State in accordance with the
international law reflected in the LOS Convention. 44
Other Baseline Rules
Low'Tide Elevations. The low-water line on a low-tide elevation may be used as
the baseline for measuring the breadth of the territorial sea only where that
elevation is situated wholly or partly at a distance not exceeding the breadth of
the territorial sea measured from the mainland or an island. Where a low-tide
elevation is wholly situated at a distance exceeding the breadth of the territorial
sea from the mainland or an island, even if it is within that distance measured
from a straight baseline or bay closing line, it has no territorial sea of its own. 45
Combination of Methods. A coastal State may determine each baseline
segment using any of the methods permitted by the LOS Convention that suit
the specific geographic condition of that segment, i.e., the methods for drawing
normal baselines, straight baselines, or closing lines. 46
Harbor Works. Only those permanent man-made harbor works which form an
integral part of a harbor system, such as jetties, moles, quays, wharves,
breakwaters, and sea walls, may be used as part of the baseline for delimiting
the territorial sea. 47 Offshore installations and artificial islands are not
considered permanent harbor works for baseline purposes. 48
River Mouths. If a river flows directly into the sea without forming an estuary,
the baseline is a straight line drawn across the mouth of the river between
points on the low-water line of its banks. 49 If the river forms an estuary, the
baseline is determined under the provisions relating to juridical bays. 50
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Maritime Claims/Law of Baselines
Bays and Other Features
Juridical Bays. A "juridical bay" is a bay meeting specific criteria. Such a bay is
a well-marked indentation on the coast whose penetration is in such
proportion to the width of its mouth as to contain land-locked waters and
constitute more than a mere curvature of the coast. An indentation is not a
juridical bay unless its area is as large as, or larger than, that of the semicircle
whose diameter is a line drawn across the mouth of that indentation. 51
For the purpose of measurement, the indentation is that area lying between
the low-water mark around the shore of the indentation and a line joining the
low-water mark of its natural entrance points. Where, because of the presence
of islands, an indentation has more than one mouth, the semicircle shall be
drawn on a line as long as the sum total of the lengths of the lines across the
different mouths. Islands within an indentation shall be included as if they were
part of the water area of the indentation for satisfaction of the semicircle test. 52
If the distance between the low-water marks of the natural entrance points
of a juridical bay of a single State does not exceed 24 miles, the juridical bay
may be defined by drawing a closing line between these two low- water marks,
and the waters enclosed thereby shall be considered as internal waters. 53
Where the distance between the low-water marks exceeds 24 miles, a straight
baseline of 24 miles shall be drawn within the juridical bay in such a manner as
to enclose the maximum area of water that is possible within a line of that
length. 54
Historic Bays. The Territorial Sea Convention and the LOS Convention both
exempt so-called historic bays from the rules described above. 5 To meet the
standard of customary international law for establishing a claim to a historic
bay, a State must demonstrate its open, effective, long-term, and continuous
exercise of authority over the bay, coupled with acquiescence by foreign States
in the exercise of that authority. An actual showing of acquiescence by foreign
States in such a claim is required, as opposed to a mere absence of opposition.
Charts and Publication. Baselines are to be shown on large-scale nautical
charts, officially recognized by the coastal State. Alternatively, the coastal
State must provide a list of geographic coordinates specifying the geodetic
datum. 56 Drying reefs used for locating basepoints are to be shown by an
internationally accepted symbol for depicting such reefs on nautical charts. 57
The coastal State is required to give due publicity to such charts or lists of
geographical coordinates, and deposit a copy of each such chart or list with the
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Secretary-General of the United Nations. 58 Closure lines for bays meeting the
semicircle test must be given due publicity, either by chart indications or by
listed geographic coordinates. 59
Islands, Article 121(1) of the LOS Convention defines an island as a naturally
formed area of land, surrounded by water, which is above water at high tide.
Baselines are established on islands, and maritime zones are measured from
those baselines in the same way as on other land territory. In addition, as
previously indicated, there are special rules for using islands in drawing straight
baselines and bay closing lines, and even low tide elevations (which literally do
not rise to the status of islands) may be used as basepoints in specified
circumstances. These special rules are not affected by the provision in Article
121(3) that rocks which cannot sustain human habitation or economic life of
their own shall have no EEZ or continental shelf.
Artificial Islands and Off-shore Installations. Artificial islands, installations,
and structures (including such man-made objects as oil-drilling rigs,
navigational towers, and off-shore docking and oil-pumping facilities) do not
possess the status of islands and may not be used to establish baselines, enclose
internal waters, or establish or measure the breadth of the territorial sea, EEZ,
or continental shelf. 60 Safety zones of limited breadth may be established to
protect artificial islands, installations and structures and the safety of
navigation in their vicinity. 61
Roadsteads* Roadsteads normally used for the loading, unloading, and
anchoring of ships, and which would otherwise be situated wholly or partly
beyond the outer limits of the territorial sea, are included within the territorial
sea. 62 Roadsteads included within the territorial sea must be clearly marked on
charts by the coastal State. Only the roadstead itself is territorial sea;
roadsteads do not generate territorial seas around themselves; the presence of a
roadstead does not change the legal status of the water surrounding it. 63
lmost fifty years ago, the International Court of Justice stated that
.delimitation of straight baselines "cannot be dependent merely upon
the will of the coastal State as expressed in its municipal law . . . [T]he validity
of the delimitation with regard to other States depends upon international
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Maritime Claims/Law of Baselines
law." 64 However, what nations do in the face of baseline claims inconsistent
with international law is crucial. As two noted British scholars have stated:
[WJhere a baseline is clearly contrary to international law, it will not be valid,
certainly in respect of States which have objected to it, though a State which has
accepted the baseline (for example in a boundary treaty) might be estopped from
later denying its validity. In border-line cases — for example, where there is doubt
as to whether a State's straight baseline system conforms to all the criteria laid
down in customary and conventional law — the attitude of other States in
acquiescing in or objecting to the baseline is likely to prove crucial in
determining its validity. 65
The MCRM and the views of the United States have assisted, and will
continue to materially assist, all States in achieving the harmonization of
domestic with international law envisioned by Article 310 of the Law of the
Sea Convention. Jack Grunawalt can be proud of the what he has done over
the past twenty-five years in that regard. We all are in his debt and renew our
commitment to that end.
Jack, fair winds and following seas forever.
Notes
1. Captain Grunawalt served as Staff Judge Advocate to the Commander in Chief, U.S.
Pacific Command between 1980 and 1984.
2. The Soviet naval base of Vladivostok lay deep within Peter the Great Bay facing the Sea
of Japan near the northern border with North Korea.
3. Marjorie Whiteman, 4 Digest of International Law 250-51 (1965)
[hereinafter WHITEMAN].
4. II Dept of State, Cumulative Digest of United States Practice in
INTERNATIONAL LAW 1981-1988, at 1811-12 (Marian Nash Leich ed., 1994); J. ASHLEY
ROACH & ROBERT W. SMITH, UNITED STATES RESPONSES TO EXCESSIVE MARITIME CLAIMS
49-51 (2ded. 1996) [hereinafter ROACH & SMITH, RESPONSES]; J. ASHLEY ROACH & ROBERT
W. SMITH, EXCESSIVE MARITIME CLAIMS 31-33 (66 International Law Studies, 1994). For
earlier protests of this claim, see WHITEMAN, supra note 3, 251-257.
5. DEPT OF DEFENSE, MARITIME CLAIMS REFERENCE MANUAL, DoD 2005. 1-M (1st ed.
1987, 2d ed. 1990, 3d ed. 1996).
6. Commentary enclosed with the Letter of Submittal of the Secretary of State, Sept. 23,
1994, S. TREATY DOC. No. 103-39, at 8 (1994) [hereinafter U.S. Commentary], reprinted in
DEPT OF STATE, 6 DISPATCH Supp. No. 1, Feb. 1995, at 7-10; 34 I.L.M. 1393, 1402-1404
(1995); 7 GEO. INT'L ENVTL. L. REV. 93-97 (1994); and ROACH & SMITH, RESPONSES, supra
note 4, at 543-551.
7. An earlier version of this paper appears in ROACH & SMITH, RESPONSES, supra note 4,
at 57-74.
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J. Ashley Roach
8. United Nations Convention on the Law of the Sea, Dec. 10, 1982, U.N. Doc.
A/CONF.62/122 (1982), reprinted in 21 1.L.M. 12614354 (1982) and in THE LAW OF THE SEA:
OFFICIAL TEXT, U.N. Sales No. E.83.V.5, 1983 (entered into force Nov. 16, 1994) [hereinafter
LOS Convention] .
9. The baseline provisions of the 1982 LOS Convention are examined in OFFICE FOR
Oceans Affairs and the Law of the Sea, United Nations, The Law of the Sea:
BASELINES (U.N. Sales No. E.88.V.5*, 1989) [hereinafter U.N., BASELINES]. OFFICE FOR
Oceans Affairs and the law of the Sea, United nations, Baselines: National
LEGISLATION (1989), and ATLAS OF THE STRAIGHT BASELINES (Giampiero Francalanci et a\.
eds., 1986) also detail the baseline claims of the coastal and island States.
10. As noted in the Introduction to the recent UN study on baselines, " [historically viewed
as a body of law regulating movement — of vessels, products and people — the new law of the sea
has become increasingly a law of appropriation — the assertion of national claims to large
portions of the earth's surface covered by the oceans." U.N., BASELINES, supra note 9, at vii.
11. In depositing its instrument of ratification of the LOS Convention, the Netherlands
declared "A claim that the drawing of baselines ... is in accordance with the Convention will
only be acceptable if such lines . . . have been established in accordance with the Convention."
Division for Ocean Affairs and the Law of the Sea, United Nations, The Law of
the Sea: Declaration and Statements with Respect to the United Nations
Convention on the Law of the Sea and to the Agreement Relating to the
Implementation of Part xi of the United Nations Convention on the Law of the
SEA OF 10 DECEMBER 1982, at 36, U.N. Sales No. E.97.V.3 (1997). In depositing its instrument
of accession to the LOS Convention, the United Kingdom declared that "declarations and
statements not in conformity with articles 309 and 310 include . . . those which relate to
baselines not drawn in conformity with the Convention." U.N. Law of the Sea web site, Status of
the Convention, Declarations (last visited Feb. 3, 1998) http://www.un.org/DeptsAos.
12. Convention on the Territorial Sea and the Contiguous Zone, Geneva, Apr. 28, 1958, art.
3, 15 U.S.T. 1606, T.I.A.S. No. 639, 516 U.N.T.S. 205, [hereinafter Territorial Sea
Convention]; LOS Convention, supra note 8, art. 5.
13. Definition 50, in Consolidated Glossary of Technical Terms used in the United Nations
Convention on the Law of the Sea, International Hydrographic Bureau Special Pub. No. 51, A
Manual on Technical Aspects of the United Nations Convention on the Law of the Sea, 1982,
Part I, reprinted in UN, BASELINES, supra note 9, at 58 [hereinafter Consolidated Glossary].
14. Robin R. Churchill & Alan V.Lowe, The Law of the Sea 46 (2drev.ed. 1988).
15. LOS Convention, supra note 8, art. 6; U.N., BASELINES, supra note 9, 11 24. The
International Hydrographic Organization Working Group on Technical Aspects of the Law of
the Sea describes an "atoll" as "a ring-shaped reef with or without an island situated on it
surrounded by the open sea, that encloses or nearly encloses a lagoon"; a "reef as "a mass of rock
or coral which either reaches close to the sea surface or is exposed at low tide"; and a "fringing
reef as "a reef attached directly to the shore or continental land mass, or located in their
immediate vicinity." Consolidated Glossary, supra note 13, app. I, definitions 9 & 66.
16. U.N., BASELINES, supra note 9, HI 35 & 38.
17. Id., HI 38 & 39; CHURCHILL & LOWE, supra note 14, at 33 (while in some situations it
would be impracticable to use the low-water line, "the effect of drawing straight baselines, even
strictly in accordance with the rules, is often to enclose considerable bodies of sea as internal
waters"). Professors Reisman and Westerman warn, "the chief practical effect of a straight
baseline claim is to augment the areas of internal and territorial waters within state control.
When individual baseline segments are very long, however, significant areas of continental shelf
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Maritime Claims/Law of Baselines
and exclusive economic zone are also gained." W. MICHAEL REISMAN &GAYL S. WESTERMAN,
Straight Baselines in International Maritime boundary Delimitation 105 (1992) .
18. U.S. Commentary, supra note 6, at 8; JOHN R. PRESCOTT, THE MARITIME POLITICAL
BOUNDARIES OF THE WORLD 50 (1985); REISMAN & WESTERMAN, supra note 17, at xv.
19. REISMAN & WESTERMAN, supra note 17, at 77.
20. Id. at 90-91.
21. U.S. Commentary, supra note 6, at 9.
22. The LOS Convention does not specify how many deep indentations must exist in any
locality on the coastline. Nevertheless, there must be noticeably more than one deep indentation
in the locality, otherwise the juridical bay criteria would apply. While U.N., BASELINES, supra
note 9, H 36, suggests "several," three should be the minimum necessary to distinguish the
situation from bays. There may also be one or more shallower cuts into the locality of the
coastline.
23. The LOS Convention does not define "locality." This criterion, which combines the "cut
into" and "deep indentation" requirements, coupled with the definition of "localities" infra,
describe a "locality" where straight baselines may lawfully be drawn. The point at which the
prescribed geographical criteria ceases to exist constitutes the limit of that particular "locality."
24. The LOS Convention does not define "deeply indented" except by comparison with
Article 10 on bays. A bay is defined as a "well-marked indentation" of a specified proportion (the
semi-circle test, see infra). Logical interpretation suggests that "deeply indented" sets a stricter
geographical standard than that for a juridical bay. This criterion is designed to prevent shallow
bays which do not meet the penetration criterion for juridical bays from being the basis for
establishing a series of straight baseline segments in a particular locality (although some shallow
indentations not being juridical bays in the locality of the deep indentations may in the process
also be closed off as "cuts into" the coastline), while ensuring recognition that the purpose of
straight baselines is not "to increase the territorial sea unduly." U.N., BASELINES, supra note 9, 11
39. It should be noted that the last sentence of paragraph 36 of U.N. , BASELINES, incorrectly
states that there is general agreement that each of the several indentations must be juridical bays.
25. Neither term is defined in the LOS Convention or in the IHO Glossary appended to
U.N., BASELINES. The term "coastline" as used in Article 7 is clearly referring to the normal
baseline defined in Article 5 as the "low-water line along the coast." U.N., BASELINES, supra note
9, 11 9, notes that "the low-water line is the intersection of the plane of low water with the shore."
"Localities" is defined to make clear that each baseline segment is related to a particular
geographic location.
26. Article 7 of the LOS Convention does not define a "fringe," or how close the islands must
be to the mainland in the vicinity, or how close together the islands must be. The fringe must be
made up of islands; low-tide elevations, artificial islands, reefs, roadsteads, or off-shore
installations are not islands. The definition of island found in Article 121(1) of the LOS
Convention is "a naturally formed area of land, surrounded by water, which is above water at
high tide." Professors Reisman and Westerman suggest that a fringe of rocks which cannot
sustain human habitation or economic life of their own [see Article 121 (3)] should not qualify as
a fringe of "islands," although they would permit rocks within the fringe of islands to be used as
basepoints. REISMAN & WESTERMAN, supra note 17, at 85.
27. U.S. Commentary, supra note 6, at 9.
28. This first criterion addresses the maximum permissible seaward distance of the islands
from the coastline in the vicinity. "In its immediate vicinity" clearly suggests that the distance
will rarely exceed 24 miles since (a) open areas of high seas would lack the "close link" to the
mainland necessary to justify a conversion to internal waters required by Article 7(3) of the LOS
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Convention; (b) Article 8(2) preserves the right of innocent passage in waters closed off by
straight baselines which had not previously been considered as such; and (c) Article 10(5)
authorizes the use of a 24-mile straight baseline to enclose most of a juridical bay whose mouth is
wider than 24 miles. Accord MUHAMMAD MUNAVVAR, OCEAN STATES: ARCHIPELAGIC
REGIMES IN THE LAW OF THE SEA 121 (1995).
29. This second criterion addresses the maximum distances between islands to make up a
fringe. Given the linkage to territorial waters described in the preceding endnote, it follows that,
as a rule, no straight baseline segment should exceed 24 miles. Two 12-mile arcs drawn from
appropriate low-water marks would be tangent at exactly 24 miles. A close spatial relationship
between the various islands produces a barrier between the actual coast and the open sea and
constitutes the justification for drawing a straight baseline in that locality. A scattering of islands,
each far from the other, along a smooth and otherwise undistinguished coast does not qualify.
Neither would a close constellation of an island cluster in a single place warrant a straight
baseline. What is required is a distribution of islands close enough to each other to warrant that
they fringe the coast. REISMAN & WESTERMAN, supra note 17, at 86-87. A fringe of islands
meeting these two criteria will necessarily essentially parallel the coast. See U.N., BASELINES,
supra note 9, 11 43, and REISMAN & WESTERMAN, supra note 17, at 86.
30. This criterion, drawn from paragraph 45 of U.N., BASELINES, provides an objective
criterion for determining if the islands actually mask the coastline in the vicinity. "Masking" can
be more objectively determined if the islands mask the majority of the mainland coastline in any
given locality. Professors Reisman and Westerman believe the quantitative test for the number
of islands should be "very high," approximating that found in the Norwegian skjaergaard.
REISMAN & WESTERMAN, supra note 17 at 86.
3 1 . Limits in the Seas No. 106, Developing Standard Guidelines for Evaluating
Straight Baselines 30-32 (1987).
32. The 24-mile maximum segment length is implied from a close reading of the relevant
articles of the LOS Convention. Article 7(1) speaks of the "immediate vicinity" of the coast.
Article 7(3) states that "the sea areas lying within the line must be sufficiently closely linked to
the land domain to be subject to the regime of internal waters." In both of these descriptions, the
implication is strong that the waters to be internalized would otherwise be part of the territorial
sea. It is difficult to envision a situation where international waters (beyond 12 miles from the
appropriate low-water line) could be somehow "sufficiently closely linked" as to be subject to
conversion to internal waters.
This implication is reinforced by Article 8(2), which guarantees the right of innocent passage
in areas converted to internal waters by straight baselines. Innocent passage is a regime
applicable to the territorial sea (with a maximum breadth of 12 miles). Preservation of innocent
passage carries over pre-existing rights in waters that were territorial in nature before the
application of straight baselines.
Given this theme of linkage to territorial waters, it follows that, as a rule, no straight baseline
segment should exceed 24 miles. Two 12 -mile arcs from appropriate low-water marks would
exactly overlap at 12 miles. Article 10(5) lends even further strength to this rule. Even in the
case of a bay that meets the semicircle test, a closing line under Article 10 may not be drawn at
the natural entrance points if those points are more than 24 miles apart. Article 10 permits only a
24-mile straight baseline within such a bay. This emphasizes the overriding importance of the
24-mile rule, even after satisfaction of the semicircle test.
Accord Finland Decree No. 464, Aug. 18, 1956, art. 4(2), (straight baseline segments shall be
not longer than twice the width of the territorial sea), translated in LIMITS IN THE SEAS No. 48,
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Maritime Claims/Law of Baselines
STRAIGHT BASELINES: FINLAND (1972). Cf. the demarches by Germany, on behalf of the
European Union (EU) and endorsed by the acceding States (Austria, Finland, and Sweden):
(a) to Thailand concerning the announcement by the Prime Minister's Cabinet on August
17, 1992, of its straight baselines and internal waters in area 4 {reprinted in U.N., LOS BULL. No.
25, June 1994, at 8), in which the EU stated that "even if the United Nations Convention on the
Law of the Sea does not set a maximum length for baseline segments, the segments determined
by Thailand are excessively long. They are in fact 81 miles long between points 1 and 2, 98 miles
long between points 2 and 3, and 60 miles long between points 3 and 4." U.N., LOS BULL. No. 28,
at 31 (1995); and
(b) to Iran to the same effect. U.N., LOS BULL. No. 30, at 60 (1996). Iran's reply may be
found in id., No. 31, at 38 (1996).
33. U.S. Commentary, supra note 6, at 9. The Territorial Sea Convention, Article 4(2) and
the LOS Convention, Article 7(3), specifically provide that straight baselines must not depart
"to any appreciable extent from the general direction of the coast," and the sea areas they enclose
must be "sufficiently closely linked to the land domain to be subject to the regime of internal
waters." Professors Reisman and Westerman note that the coastal State must prove this linkage,
and propose that it may be met through proof of geographical proximity, practice through time,
and intensity of use. REISMAN & WESTERMAN, supra note 17, at 99-100.
34. This criterion recognizes that hard and fast rules will not always be acceptable for
drawing straight baselines.
35. Territorial Sea Convention, supra note 12, art. 4(5); LOS Convention, supra note 8, art.
7(5); U.N., BASELINES, supra note 9, U 58. The economic interests test is available only if the
preliminary geographical requirements have been met. Thus, with the exclusive economic zone
jurisdiction now available to all coastal States, no economic rationale can alone justify a straight
baseline claim.
36. LOS Convention, supra note 8, art. 7(5); Territorial Sea Convention, supra note 12, art.
4(4). Consequently, the coastal State must advance historic economic data to establish this
exception. Clearly, Article 7(5) does not refer to potential economic interests. Professors
Reisman and Westerman suggest a test combining geographic proximity, practice through time,
and intensity of past use. REISMAN & WESTERMAN, supra note 17, at 100-101.
37. U.N., BASELINES, supra note 9, 11 51. Article 7(1) of the LOS Convention provides that
the straight baseline segments must join "appropriate basepoints." Those basepoints will be
appropriate only if the segments drawn satisfy the delimitation rules of paragraphs 2 through 6 of
Article 7. The Convention nowhere authorizes the use of abstract points at sea, described in
terms of coordinates of latitude and longitude but otherwise failing the requirements of the
Convention, as basepoints.
38. LOS Convention, supra note 8, art. 13(1); Territorial Sea Convention, supra note 12,
art. 10(1).
39. The same rule appeared in the Territorial Sea Convention, supra note 12, art. 4(3).
40. This second exception is new and not contained in Territorial Sea Convention, Article
4(3). Professors Reisman and Westerman argue that this new authority cannot be used unless
and until there is a substantial demonstration of the existence oi widespread international
recognition of the particular low-tide elevation lacking a lighthouse as a basepoint. REISMAN &
WESTERMAN supra note 17, 93-94.
41. U.S. Commentary, supra note 6, at 10; REISMAN & WESTERMAN, supra note 17, 93-94.
See MUNAVVAR, supra note 28, at 125.
42. The comparable provision in the Territorial Sea Convention appears in Article 4(5). An
example of state practice complying with this rule is the French baseline decree of October 19,
194
J. Ashley Roach
1967, which provides for noncontinuous segments leaving Monaco with unrestricted oceans
seaward. 7 I.L.M. 347 (1968); LIMITS IN THE SEAS No. 37, STRAIGHT BASELINES: FRANCE
(1972). The Spanish enclaves of Cuela and Melilla and the Islas Chafarinas almost completely
enclosed within Moroccan straight baselines are another example. FARAJ ABDULLAH AHNISH,
the international law of maritime boundaries and the practice of states in
the Mediterranean Sea 190-193 (1993).
43. The same rule appeared in the Territorial Sea Convention, supra note 12, art. 5(2). An
example of this situation is the Piombino Channel between the Italian Island of Elba (the main
island of the Tuscany archipelago) and the Italian mainland, which connects two parts of the
high seas, while lying entirely within Italian internal waters as defined by Italy's 1977 straight
baseline decree. Tullio Scovazzi, Management Regimes and Responsibility for International Straits,
with Special Reference to the Mediterranean Straits, 19 MARINE POL'Y 137, 151 (1995).
44. LOS Convention, supra note 8, art. 7(2). Applicable deltas include those of the
Mississippi and Nile Rivers, and the Ganges-Brahmaputra River in Bangladesh. U.N.,
BASELINES, supra note 9, 11 50; PRESCOTT, supra note 18, at 15; REISMAN & WESTERMAN, supra
note 17, at 101-102.
45. Territorial Sea Convention, supra note 12, art. 11; LOS Convention, supra note 8, art.
13. ,
46. LOS Convention, supra note 8, art. 14. There is no corresponding provision in the 1958
Territorial Sea Convention. Article 14 does not permit a coastal State to draw straight baselines
in a locality not meeting the required geographic criteria; in those circumstances, the low-water
line must be followed. See U.N., BASELINES, supra note 9, 1111 31-32. Closing lines are discussed
infra.
47. Territorial Sea Convention, supra note 12, art. 8; LOS Convention, supra note 8, art. 1 1 ;
IHO Definition 38, in U.N., BASELINES, supra note 9, at 56; U.N., BASELINES, supra note 9, 11 76.
Professors Reisman and Westerman would add a prohibition against the use of atolls and fringing
reefs as basepoints for straight baseline segments along the coast or around the islands. REISMAN
& Westerman, supra note 17, at 94.
48. LOS Convention, supra note 8, art. 11.
49. Territorial Sea Convention, supra note 12, art. 13; LOS Convention, supra note 8, art. 9.
The fact that the river must flow "directly into the sea" suggests that the mouth should be well
marked.
50. See the 1956 I.L.C. draft of what became Article 13 of the Territorial Sea Convention
(the predecessor of Article 9 of the LOS Convention), U.N. Doc. A/3159, II Y.B.I.L.C. 1956, at
253, 271, and IHO Definition 54, in U.N., BASELINES, supra note 9, at 59. An estuary is the tidal
mouth of a river, where the tide meets the current of fresh water. IHO Definition 30, in id at 54.
The Conventions do not state exactly where, along the banks of estuaries, the closing points
should be placed. No special baseline rules have been established for rivers entering the sea
through deltas, such as the Mississippi, (i.e., either the normal or straight baseline principles
above may apply) or for river entrances dotted with islands. The Territorial Sea and LOS
Conventions place no limit on the length of river closing lines. Further, the Conventions do not
address ice coast lines, where the ice coverage may be permanent or temporary.
51. Territorial Sea Convention, supra note 12, art. 7(2); LOS Convention, supra note 8, art.
10(2).
52. Territorial Sea Convention, supra note 12, art. 7(3); LOS Convention, supra note 8, art.
10(3).
53. Territorial Sea Convention, supra note 12, art. 7(4); LOS Convention, supra note 8, art.
10(4).
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Maritime Claims/Law of Baselines
54. Territorial Sea Convention, supra note 12, art. 7(5); LOS Convention, supra note 8, art.
10(5). The waters enclosed by a baseline of a wide-mouth bay need not meet the semicircle test,
since the wide mouth bay as a whole must meet that test to be a juridical bay. In this case, there is
no requirement to draw the closing line between prominent points; they can be fixed on smooth
coasts. PRESCOTT, supra note 18, at 60. Historic bays, bays bounded by more than one State, and
bays converted to internal waters by straight baselines under Article 7, are not covered by Article
10.
55. Territorial Sea Convention, supra note 12, art. 7(6); LOS Convention, supra note 8, art.
10(6).
56. LOS Convention, supra note 8, art. 16(2). This rule applies to both normal and straight
baselines. Under the Territorial Sea Convention, Article 4(6), only straight baselines were
required to be clearly shown.
57. LOS Convention, supra note 8, art. 6. There is no corresponding provision in the 1958
Territorial Sea Convention.
58. Id., art. 16(2). The Territorial Sea Convention also required due publicity in Articles
4(6) (straight baselines) and 9 (roadsteads). See U.N., BASELINES, supra note 9, 1111 2-8, 29 &
94-102.
59. LOS Convention, supra note 8, art. 16.
60. Id., arts. 11, 60(8), 147(2) & 259.
61. The criteria for establishing safety zones are set out in LOS Convention, supra note 8,
arts. 60, 177(2) and 260.
62. LOS Convention, supra note 8, art. 12.
63. U.S. Commentary, supra note 6, at 13.
64. Anglo-Norwegian Fisheries Case, (U.K. v. Nor.) 1951 I.C.J. Rep. 132.
65. CHURCHILL & LOWE, supra note 14, at 46-47.
196
X
The Principle of the Military Objective
in the Law of Armed Conflict
Horace B. Robertson, Jr.
IN THEIR COMMENTARY on the two 1977 Protocols Additional to the
Geneva Conventions of 1949, Michael Bothe, Karl Josef Partsch, and
the late Waldemar A. Solf remark that the definition of the "military
objective" in the sense of targets for attack had, until adoption of Article 52
of Additional Protocol I, 1 "eluded all efforts to arrive at a generally
acceptable solution." 2 This is surprising in that the principle of distinction,
from which the principle of the military objective is derived, is one of the
two "cardinal principles" of the law of armed conflict. 3 The principle of
distinction itself, although an inherent part of both customary and
conventional law governing the conduct of war, did not receive precise
articulation in a treaty document until adopted in Additional Protocol I,
which states in Article 48 that:
In order to ensure respect for and protection of the civilian population and
civilian objects, the Parties to the conflict shall at all times distinguish
between the civilian population and combatants and between civilian objects
and military objectives and accordingly shall direct their operations only
against military objectives.
Military Objective
Development and Articulation of the Principle
of the Military Objective
Despite some embryonic intimations of the emergence of the principle in the
period of medieval Canon law, 4 the chivalric codes of the international order of
knighthood, and the early war codes of certain European States, 5 the modern
articulation of the principle of distinction had its origins in the late 19th and
early 20th centuries, probably under the influence of Rousseau's proclamation
that wars were disputes between States and not between peoples.
Consequently, military operations were to be conducted exclusively between
combatants in uniform, and unarmed civilians were to be spared in their
persons and property. 6
The principle of distinction had its first formal recognition as such in
Professor Francis Lieber's Instructions promulgated to the Federal Forces in
the United States Civil War by President Lincoln. 7 Included among its
provisions is a recognition that in remote times the universal rule was, "and
continues to be with barbarous armies," that civilians and their property were
subject to any privation the hostile commander chose to impose. 8 But the
Instructions also recognize that as civilization has advanced,
so has likewise steadily advanced, especially in war on land, the distinction
between the private individual belonging to a hostile country and the hostile
country itself, with its men in arms. The principle has been more and more
acknowledged that the unarmed citizen is to be spared in person, property, and
honor as much as the exigencies of war will admit. 9
The Declaration of Petersburg of 1868 10 tacitly recognized the principle,
stating in its Preamble that "the only legitimate object which States should
endeavor to accomplish during war is to weaken the military forces of the
enemy." This sentiment was also expressed in the Final Protocol of the Brussels
Conference of 1 874. n
The Oxford Manual of 1880, in its first article, states, "The state of war does
not admit of acts of violence, save between the armed forces of belligerent
States." 12 An explanatory statement immediately following the article notes
that " [t]his rule implies a distinction between the individuals who compose the
'armed force' of a State and its other ressortissants [nationals]." 13 Despite these
advances toward adoption of the principle of distinction in a conventional
instrument, the Hague Conventions of 1907 gave only limited and implied
respect to the principle. Without specific reference to the principle of
distinction or the concept of the military objective, a number of provisions
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Horace B. Robertson, Jr.
explicitly require respect for the person and property of noncombatants.
Article 25 of the Regulations Annexed to Hague IV 14 prohibits bombardment
of undefended places in land warfare, as does Article 1 of Hague IX for naval
bombardments. 15 In both land and naval bombardments, the commander
ordering the bombardment is normally required to give notice prior to the start
of the bombardment. 16 In both cases, the commander must take all necessary
steps to spare, "as far as possible, buildings dedicated to religion, art, science, or
charitable purposes, historic monuments, hospitals, and places where the sick
and wounded are collected, provided they are not being used at the time for
military purposes." 17 Proscriptions against harming inhabitants and taking
their property without compensation are found in a number of places in
Hague IV. 18
The first explicit reference to the "military objective" as a concrete rule of
warfare is found in the Hague Rules of Air Warfare of 1923. 19 Article 24(1) of
the Rules states:
Aerial bombardment is legitimate only when directed at a military objective,
that is to say, an object of which the destruction or injury would constitute a
distinct military advantage to the belligerent.
Although the Hague Rules were never adopted in a treaty instrument,
Lauterpacht states that they are regarded "as an authoritative attempt to clarify
and formulate rules of law governing the use of aircraft in war and they will
doubtless prove a convenient starting point for any future steps in this
direction." 20 At least insofar as the definition of "military objective" contained
in the rules is concerned, Lauterpacht's prediction was, as we shall later see,
prescient.
Although the international community undertook a major effort in 1949 to
bring up to date the international rules for the protection of the victims of
armed conflict, the project was directed primarily to the protection of the
victims of war and did not include an attempt to modernize the Hague Rules or
other conventions dealing with the means and methods of warfare. 21 As a
consequence, the International Committee of the Red Cross (ICRC), in an
effort to fill what it believed was a gap in the humanitarian law of armed
conflict, prepared Draft Rules for the Limitation of the Dangers Incurred by the
Civilian Population in Time of War. The Draft Rules were submitted to the
XlXth International Conference of the Red Cross in New Delhi in 1957, which
approved them in principle. 22 When governments failed to follow up on the
draft, the ICRC, at the XXth Conference in Vienna in 1965, proposed the
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Military Objective
reaffirmation of certain basic principles, which were adopted as Conference
Resolution XXVIII. The resolution provided, inter alia:
All governments and other authorities responsible for action in armed
conflicts should conform at least to the following principles: . . . that distinction
must be made at all times between persons taking part in the hostilities and
members of the civilian population to the effect that the latter be spared as much
as possible. 23
Soon thereafter the General Assembly of the United Nations became
interested in the efforts of the ICRC and adopted a series of resolutions along
the lines of Resolution XXVIII, the most significant, insofar as our subject is
concerned, being Resolution 2675 (XXV). It stated that the General Assembly
affirmed certain basic principles of the law of armed conflict, including:
2. In the conduct of military operations during armed conflicts, a distinction
must be made at all times between persons actively taking part in the hostilities
and civilian populations.
4. Civilian populations as such should not be the object of military
operations. 24
These movements toward a codification of the principle of distinction and
defining the military objective received further impetus from a resolution
adopted by the Institute of International Law at Edinburgh in 1969. This
Resolution reaffirmed the "fundamental principle" o( the obligation of parties
to observe the principle of distinction and defined military objectives as only
those objects,
which, by their very nature or purpose or use, make an effective contribution to
military action, or exhibit a generally recognized military significance, such that
their total or partial destruction in the actual circumstances gives a substantial,
specific and immediate military advantage to those who are in a position to
destroy them. 25
The culmination of efforts by the ICRC and others to modernize and amplify
the 1949 Geneva Conventions was the Diplomatic Conference on the
Reaffirmation and Development of International Humanitarian Law
Applicable in Armed Conflicts (CDDH) , convened by the Swiss Government
200
Horace B. Robertson, Jr.
in 1974. The Conference met in four annual sessions and in 1977 adopted two
Additional Protocols to the Geneva Conventions of 12 August of 1949. The
first is applicable to international armed conflicts and the second to
non-international armed conflicts. Only the former is of interest to us in that it
contains explicit provisions concerning the principle of distinction and the
concept of the military objective. 26
As a result of the deliberations of the CDDH, the international community
has for the first time in a treaty document adopted a specific and explicit
articulation of the principle of distinction and its derivative principle of the
military objective. Additional Protocol I (as of September 1997) has now
entered into effect for 148 States.
Although some aspects of the two principles are reflected in a number of
articles in Additional Protocol I, 27 they are expressly set forth in two articles,
Article 48, set forth above, and Article 52. The latter reads as follows:
Article 52 - General protection of civilian objects
1. Civilian objects shall not be the object of attack or of reprisals. Civilian
objects are all objects which are not military objectives as defined in paragraph 2.
2. Attacks shall be limited strictly to military objectives. In so far as objects
are concerned, military objectives are limited to those objects which by their
nature, location, purpose or use make an effective contribution to military action
and whose total or partial destruction, capture or neutralization, in the
circumstances ruling at the time, offers a definite military advantage. 28
It is noteworthy in the foregoing articulation of the definition of the military
objective that it follows closely the definition contained in Article 24 of the
1923 Hague Rules of Air Warfare, although it is amplified in several respects,
reflecting particularly the additional ideas expressed in the Edinburgh
Resolution of the Institute of International Law. 29 Article 52, in essence,
provides a two-pronged test for whether objects are military objectives. The
first prong is that they must, by their "nature, location, purpose or use," make
an effective contribution to military action. The second is that their total or
partial destruction, capture or neutralization must, in the prevailing
circumstances, offer a definite military advantage.
It should also be noted that in Additional Protocol I, the words "whose total
or partial destruction, capture or neutralization" have replaced "destruction
and injury," and the words "substantial, specific and immediate" of the
Edinburgh Resolution have been replaced by the less specific "definite."
201
Military Objective
The term "attacks" is also used in a broader sense than is traditionally meant
in military parlance, where the term was generally used to describe the use of
military force in an offensive action, particularly the launching of weapons
against the enemy. As defined in Article 49, " 'Attacks' means acts of violence
against the adversary, whether in offense or in defense."
Although the section of Additional Protocol I concerned with attacks does
not apply to naval warfare, except insofar as attacks from the sea or air may
affect the civilian population, individual civilians, or civilian objects on land, 30
many modern navies have the capability and are often employed to conduct
attacks on land targets by naval artillery or missiles or by their air arms. Thus,
this section of the Protocol is explicitly applicable to this aspect of naval
warfare.
For armed conflict at sea generally, however, there has been no modern
counterpart to the codification effort reflected in the events leading up to and
the convening of the Diplomatic Conference which resulted in the two
Additional Protocols of 1977. Consequently, there has been no explicit
incorporation of the principle of the military objective into conventional law
applicable to armed conflicts at sea. The closest approach to that process has
been the series of Round Tables convened by the International Institute of
Humanitarian Lav/ of San Remo, Italy, from 1988 to 1994, whose purpose was to
provide a contemporary restatement of international law applicable in armed
conflicts at sea. 31 The Manual that resulted from the deliberations of the Round
Tables was not envisaged as a draft convention but was viewed by participants in
the Round Tables as a modern equivalent of the Oxford Manual on the Laws of
Naval War Governing the Relations between Belligerents adopted by the
Institute of International Law at Oxford in 1913. 32 The San Remo Manual adopts
essentially in haec verba the definitions of the principle of distinction and the
military objective found in Additional Protocol I. The relevant provisions are
included in a section entitled "Basic Rules" and provide that:
39 Parties to the conflict shall at all times distinguish between civilians or
other protected persons and combatants and between civilian or exempt
objects and military objectives.
40 In so far as objects are concerned, military objectives are limited to those
objects which by their nature, location, purpose or use make an effective
contribution to military action and whose total or partial destruction,
capture, or neutralization, in the circumstances ruling at the time, offers a
definite military advantage.
202
Horace B. Robertson, Jr.
41 Attacks shall be limited strictly to military objectives. Merchant vessels
and civil aircraft are civilian objects unless they are military objectives in
accordance with the principles and rules set forth in this document.
The Principle of the Military Objective
as a Part of the Customary Law of War
Since the United States has not ratified Additional Protocol I, and the San
Remo Manual does not of itself have any binding effect on States, it is necessary
to examine whether the principles of distinction and the military objective
have become rules of customary international law and, in particular, whether
the United States recognizes them as such. To state the proposition another
way, are the provisions of Additional Protocol I and the San Remo Manual
articulating the principles of distinction and the military objective declaratory
of international law? If they are, then they are binding on States not party to
the Protocol, not as treaty obligations but as customary norms of identical
content.
According to the Restatement, customary international law results from a
concurrence of two elements: (1) a general and consistent practice of States;
and (2) a sense of obligation on the part of States to adhere to the practice. 33
With respect to the first element (practice) , acts which may constitute State
practice include diplomatic instructions, public measures, and official
statements of policy. They may also include acquiescence in acts of another
State. 34 The practice required to establish a norm of customary law must be
general, but not necessarily universal. It should reflect "wide acceptance
among the states particularly involved in the relevant activity." 35 As to
deviations from the practice, the U.S. Navy's Commander s Handbook on the
Law of Naval Operations states:
Occasional violations do not substantially affect the validity of a rule of law,
provided routine compliance, observance, and enforcement continue to be the
norm. However, repeated violations not responded to by protests, reprisals, or
other enforcement actions may, over time, indicate that a particular rule is no
longer regarded as valid. 36
With respect to the second element (sense of obligation or opinio juris),
explicit evidence of a sense of obligation is not necessary, but is certainly
helpful. Some of the same "acts" that demonstrate a general practice also serve
to indicate that a State is acting out of a sense of obligation and not just as a
matter of courtesy or habit. 37 With respect to the law of armed conflict,
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Military Objective
inclusion of a rule in a State's military manuals is persuasive evidence that the
State regards the rule as obligatory. 38 Statements by government officials, even
those spoken in their private capacities, are helpful. A noted authority and
judge of the International Court of Justice has stated:
The firm statement by the State of what it considers to be the rule is far better
evidence of its position than what can be pieced together from the actions of that
country at different times and in a variety of contexts. 39
A number of statements, both official and unofficial, by spokesmen for the
United States Departments of State and Defense, spoken primarily in the
context of an examination of Additional Protocol I and the U.S. decision not
to ratify it, have suggested that the U. S. regards the principles of distinction
and the military objective, as articulated in the Protocol, as customary
international law. 40
Most persuasive insofar as the United States is concerned is the opinion of
the General Counsel of the Department of Defense, concurred in by the Army,
Navy, and Air Force Judge Advocates General, that the United States
recognized as "declaratory of existing customary international law" the general
principles of the law of armed conflict stated in General Assembly Resolution
2444. 41 Those principles include:
(b) That it is prohibited to launch attacks against the civilian population as
such, and
(c) That a distinction must be made at all times between persons taking part
in the hostilities and members of the civilian population to the effect that the
civilians be spared as much as possible. 42
As we have seen, incorporation in national military manuals is a strong
indication that a normative principle has matured into customary
international law. 43 Here, too, the strong indications from military manuals are
that the principle of the military objective, as formulated in Articles 48 and 52
of Additional Protocol I and paragraphs 39 and 40 of the San Remo Manual, is
recognized as a norm of customary international law. The current German
military manual provides:
441. Attacks, i.e., any acts of violence against the adversary, whether in offence
or in defence, shall be limited exclusively to military objectives.
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Horace B. Robertson, Jr.
442. Military objectives are armed forces — including paratroops in descent
but not crew members parachuting from an aircraft in distress — and objects
which by their nature, location, purpose or use make an effective
contribution to military action and whose total or partial destruction or
neutralization, in the circumstances ruling at the time, offer a definite
military advantage. 44
The Australian Operations Law Manual for air commanders contains similar
provisions:
An aerial attack must be directed against military objectives. . . . Military
objectives are those objects which by their nature, location, purpose or use make
an effective contribution to military action. To be lawful, any attack on such
objective should result in a definite military advantage. 45
The Canadian Draft Manual also adopts the Protocol definition of military
objective essentially verbatim. It provides:
Military objectives are combatants and in so far as objects are concerned,
military objectives are limited to those objects which by their nature, location,
purpose or use make an effective contribution to military action and whose total
or partial destruction, capture or neutralization, in the circumstances ruling at
the time, offers a definite military advantage. 46
Two United States manuals are also pertinent to our inquiry, those of the
Air Force and Navy/Marine Corps/Coast Guard. 47 Although predating the
actual signing of Additional Protocol I by one year, the United States Air Force
operational law manual apparently took into account the ongoing negotiations
in the CDDH, for its provisions on the principle of distinction and the military
objective are taken almost verbatim from the final provisions of the Protocol. It
provides:
In order to insure respect and protection for the civilian population and
civilian objects the parties to the conflict must at all times distinguish between
the civilian population and combatants and between civilian objects and military
objectives and accordingly direct their operations only against military
objectives. Attacks must be strictly limited to military objectives. Insofar as
objects are concerned, military objectives are limited to those objects which by
their own nature, location, purpose, or use make an effective contribution to
military action and whose total or partial destruction, capture, or neutralization
in the circumstances ruling at the time offers a definite military advantage. 48
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Military Objective
The Navy /Marine Corps /Coast Guard Manual, the most recent revision of
which is dated 1995, although pointing out that the United States is not a party
to Additional Protocol I, 49 nevertheless has also adopted, with one variation,
the Protocol formulation of the principle of the military objective. It states, in a
chapter entitled "The Law of Targeting":
Only military objectives may be attacked. Military objectives are combatants
and those objects which, by their nature, location, purpose, or use, effectively
contribute to the enemy's war-fighting or war-sustaining capability and whose total
or partial destruction, capture, or neutralization would constitute a definite
military advantage to the attacker under the circumstances at the time of the
attack. 50
The emphasized part of the foregoing quotation was the object of
considerable debate in the San Remo Round Table, which specifically rejected
it in favor of the formulation in article 52 of Additional Protocol I. As stated by
Louise Doswald-Beck, who acted as rapporteur for the sessions of the Round
Table and was the editor of the "Explanation" of the San Remo Manual,
The majority [of the Round Table] felt that the Handbook does not take into
account developments in the law relating to target discrimination since the
Second World War. In particular, they feared that "war-sustaining" could too
easily be interpreted to justify unleashing the type of indiscriminate attacks that
annihilated entire cities during that war. 51
An annotation to a previous edition of the Commander's Handbook stated
that, "This variation of the definition contained in Additional Protocol I,
Article 52(2) is not intended to alter its meaning, and is accepted by the United
States as declarative of the customary rule." 52 In the new revision of the
Annotated Supplement, the annotation is revised to state that, "This definition is
accepted by the United States as declarative of the customary rule." 5 The
inference that one may draw from this change in wording is that the United
States (at least its naval arm) has rejected the presumptively narrower
definition contained in Article 52 of Additional Protocol I in favor of one that,
at least arguably, encompasses a broader range of objects and products. In
justifying this position, the Annotated Supplement cites the American Civil
War-era decision of the United States with respect to the destruction of raw
cotton within Confederate territory, the sale of which provided funds for
almost all Confederate arms and ammunition, as well as the twelve "target sets"
for the offensive air campaign of Operation Desert Storm. 54 The text of the
Handbook itself states that, "Economic targets of the enemy that indirectly but
206
Horace B. Robertson, Jr.
effectively support and sustain the enemy's war-fighting capability may also be
attacked." 55
From the foregoing, it would appear that there is a consensus, in which the
United States concurs, that the principle of the military objective has become a
part of customary international law for armed conflict at sea, as well as on the
land and in the air. We shall in the next section examine what objects the term
"military objective" embraces and attempt to discern whether the variation in
terminology in the U.S. naval manual does in fact suggest a broadening of the
scope of permissible targets for attack.
The "Reach" of the Term, "Military Objective"
In earlier centuries, when wars were generally fought with limited objectives
and the cleavage between armed forces and the civilian population was clear,
the distinction between military objectives and civilian objects was reasonably
apparent. Only in the immediate vicinity of the battle was the civilian populace
put in jeopardy by the fire of the contending armed forces. The problem of
protecting objects which were not legitimate military objectives could be met
by prohibitory rules exempting particular categories of objects, buildings, or
installations such as churches, hospitals, buildings used for charitable or
scientific purposes, etc. This was the pattern followed in the Hague Rules, for
example. In modern warfare, however, with the tremendous increase in the
range and sophistication of weapons and with the mobilization of the populace
in support of modern armies, navies, and air forces, the cleavage is not nearly so
distinct. In the two World Wars of this century, the economies of all of the
major parties involved were completely mobilized in support of the war effort.
Nearly all industries were converted to war production; all power-generating
stations provided power for war industries; and the bulk of the adult population
was engaged in some activity connected with the war effort. At the same time,
the capabilities of the contending forces to strike targets deep in enemy
territory, primarily through their air forces, were vastly expanded. As a result,
both Allied and Axis powers conducted "strategic" bombing campaigns against
the industrial bases of their enemies which, because of the limitations at that
time on the accuracy of nighttime and high- altitude bombing, could hardly be
said to have discriminated between valid military objectives and the civilian
population and civilian objects in the vicinity of the military objective that was
the target of the bombing. 57
Nevertheless, most twentieth-century international conflicts, particularly
those occurring since World War II, have not been of the magnitude and
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Military Objective
geographic scale of the two World Wars. Most were undeclared and fought
with limited objectives. Although geographically confined to relatively small
areas, the fighting was just as intense as in the two World Wars. The Korean,
Vietnam, and Gulf Wars in which the United States was engaged were
certainly intense but had little if any physical effect on populations and objects
outside the immediate area of conflict. The Falklands/Malvinas war between
Great Britain and Argentina was likewise limited. The differences in the
intensity and scope of conflicts have led some commentators to suggest that
there should be a flexible definition of the military objective, allowing it to
expand and contract "according to the intensity, duration, subjects, and
location of the armed conflict." 58 Both Additional Protocol I and the San Remo
Manual reject this idea, providing that the same criteria apply in general and
limited wars, although the San Remo Manual "Explanation' recognizes that "the
application of these rules to the facts should result in a more restrictive
approach to targeting in limited conflicts." 59
Rather than follow the traditional pattern of establishing prohibitory rules
setting forth what objects were to be protected from hostile action, however,
the conference at which the 1977 Additional Protocols were negotiated
adopted a formula that provides criteria by which a responsible military
commander can determine, under the circumstances existing at the time,
which objects are legitimate targets for attack. As we have seen earlier, this
resulted in the two-pronged test of Article 52, namely, that, to constitute
military objectives, objects must, by their "nature, location, purpose or use"
make an effective contribution to military action and that their total or partial
destruction, capture, or neutralization must, in the prevailing circumstances,
offer a definite military advantage. Since this approach was a departure from
the traditional practice of writing prohibitory rules specifying which objects
were to be spared, it met considerable opposition at the outset of the
negotiations in the CDDH. 60 This opposition was eventually overcome by
inclusion of the first sentence of Article 52, which, in the traditional
codification pattern, is prohibitory in nature, albeit without listing exempt
objects specifically. The second sentence, upon which we shall focus our
discussion, gives the commander a two-prong test for determining which
targets are legitimate.
The first prong of the Article 52 test, as well as the San Remo test, states four
conditions — nature, location, purpose, use — which, if they make an effective
contribution to military action, make an object a military objective. Some
objects, "by their nature," are military objectives and remain so at all times,
regardless of their location or use. Examples of such objects include enemy
208
Horace B. Robertson, Jr.
warships, military aircraft (unless exempt under some specific exception such
as those applicable to medical transports), stocks of ammunition, and
combatant personnel. 61 On the other hand, the vast majority of objects become
military objectives only during the time that their particular location, purpose,
or use provides an effective contribution to military action. Civilian buildings,
for example, may become military objectives if they are being used by enemy
troops for shelter. Their "location" may make them military objectives if they
obstruct the field of fire for attack on another valid military objective. Factories
making civilian goods are not normally military objectives, but if they are
converted to manufacture war goods, their purpose and use may make them
military objectives. The ICRC Commentary suggests that "purpose is concerned
with the intended future use of an object, while that of use is concerned with its
present function." 62 Civilian transportation hubs may also be important
military transportation links, and their dual use (civilian/military) does not
exempt them from becoming military objectives, although under these
circumstances the time of attack should be taken into account to minimize
civilian casualties. 63 Bothe et al. state succinctly:
The objects classified as military objectives under this definition include
much more than strictly military objects such as military vehicles, weapons,
munitions, stores of fuel and fortifications. Provided the objects meet the
two-pronged test, under the circumstances ruling at the time (not at some
hypothetical future time), military objectives include activities providing
administrative and logistical support to military operations such as
transportation and communications systems, railroads, airfields and port
facilities and industries of fundamental importance for the conduct of the armed
conflict. 64
The second aspect of the first prong of the test which must be examined is
whether the nature, location, purpose, or use of the object makes an effective
contribution to "military action." As we saw above, the U.S. naval
Commander's Handbook substitutes the phrase "enemy's war-fighting or
war-sustaining capability" for "military action." Is there an actual substantive
difference in meaning, or is there merely a difference in perception?
Any difference between the two formulations would seem to come down to
the term "war-sustaining" in the Commanders Handbook. The term
"war-fighting" is equivalent to the Additional Protocol I term "military action."
On the other hand, "war-sustaining" implies something not quite so directly
connected with the actual conduct of hostilities.
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Military Objective
The San Remo Round Table specifically addressed the issue of whether
to adopt the formulation used in Article 52(2) of Additional Protocol I or
that contained in the Commander's Handbook. It concluded that the
Handbook's phrasing was too broad and might justify indiscriminate attacks
on entire cities. 65 The suggestion that the latter formulation might justify
attacks on entire cities seems to be an exaggerated claim. Nowhere in the
Commander's Handbook is there any suggestion that this phrasing would
open the way for unrestricted attacks on cities or other population centers.
In discussing what objects are included within its definition, the Manual
states that in addition to targets having obvious military value, military
objectives may include:
enemy lines of communication used for military purposes, rail yards, bridges,
rolling stock, barges, lighters, industrial installations producing war-fighting
products, and power generation plants. Economic targets of the enemy that
indirectly but effectively support and sustain the enemy's war-fighting capability
may also be attacked.
This explanation does not differ materially from the authoritative
interpretation of Article 52(2) by Bothe et al., who suggest:
Military objectives must make an "effective contribution to military action."
This does not require a direct connection with combat operation such as is
implied in Art. 51, para. 3, with respect to civilian persons who lose their
immunity from direct attack only while they "take a direct part in hostilities."
Thus a civilian object may become a military objective and thereby lose its
immunity from deliberate attack through use which is only indirectly related to
combat action, but which nevertheless provides an effective contribution to the
military phase of a Party's overall war effort. 66
The San Remo Manual, although adopting the Article 52(2) phrasing,
nevertheless acknowledged that a civilian object may become a military
objective and thereby lose its immunity from
deliberate attack through use which is only indirectly related to combat action,
but which nevertheless provides an effective contribution to the military part of a
party's overall war-fighting capability. 67
Probably the only point of difference between the San Remo formulation
(which adopts the Article 52(2) phrasing) and that in the Commander's
Handbook is with respect to attacks on exports that may be the sole or principal
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Horace B. Robertson, Jr.
source of financial resources for a belligerent's continuation of its war effort. In
support of the possible legitimacy of such attacks, the Commander s Handbook
cites the denial of claims for destruction of British-owned cotton exports from
the Confederacy during the American Civil War by an Anglo-American
arbitration tribunal. 68 It also raises the question whether Iraq's attacks on
tankers carrying oil from Iran during the 1980-88 Gulf War may have been
justified under the same theory, although it admits that the law on this subject
"is not firmly settled." 69
The San Re mo Round Table, however, firmly rejected the broadening of the
military objective to include such targets, "because the connection between
the exports and military action would be too remote." 70
The second prong of the two-part test provided in Article 52(2) — that the
total or partial destruction, capture, or neutralization of the object, in the
circumstances ruling at the time, offers a definite military
advantage — although incorporated in haec verba in the various national
manuals and the San Remo Manual, has received little attention from
commentators. Bothe et al. provide the seminal commentary on the subject,
stating:
The term military advantage involves a variety of considerations, including the
security of the attacking force. Whether a definite military advantage would
result from an attack must be judged in the context of the military advantage
anticipated from the specific military operation of which the attack is a part
considered as a whole, and not only from isolated or particular parts of that
operation. It is not necessary that the contribution made by the object to the
Party attacked be related to the advantage anticipated by the attacker from the
destruction, capture or neutralization of the object. 71
Although Article 51, paragraph (l)(b) and Article 57, paragraph 2 (a) (iii)
use the more restrictive term "concrete and direct" military advantage, the
documents of the CDDH do not disclose the reasons for using different
expressions. 72 Examining the context of the expressions in the three articles,
however, it appears that the purpose of using the arguably more restrictive
phrase, "concrete and direct," in Articles 51 and 57 was to provide a less
subjective test for applying the rule of proportionality where there was a danger
of civilian casualties or damage to civilian objects in a projected attack. 73 On
the other hand, Article 52, paragraph 2 is concerned only with defining what
objects are military objectives. Of course, should the attack on a legitimate
military objective involve the possibility of collateral damage to civilians or
civilian objects, the arguably more stringent restriction would apply.
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Military Objective
The Application of the Principle of the Military Objective
to Armed Conflict at Sea
As we have seen above, the term "military objective" received no precise
definition in a treaty document until 1977, when Additional Protocol I
included one for armed conflict on land (and for attacks on land targets by
naval or air forces). 74 Although this definition does not apply of its own force to
States not party to the 1977 Protocol, we have also seen that the principle of
the military objective, essentially as articulated in the Protocol, has been
acknowledged to have been assimilated into customary international law. 75
There also seems to be no question that it is also a principle of the law of armed
conflict applicable to armed conflict at sea. 76
Despite its relatively recent articulation in its present terminology as a
concrete principle of the law of armed conflict at sea, 77 the concept of the
military objective, often referred to as the "law of targeting" or a subdivision
thereof, 78 is reflected in many of the customary rules that have developed in the
conduct of naval warfare over the past two centuries — particularly those that
apply to what has come to be known as economic warfare.
Just as in land warfare, in warfare at sea, whether a person or object is a
legitimate object of attack or is protected from attack depends, in the case of
persons, on whether they are combatants or noncombatants (or civilians in the
words of Additional Protocol I), and in the case of objects, on whether or not
they make an effective contribution to the enemy's war effort (military action
in the words of Protocol; war-fighting or war-sustaining capability in the words
of the Commander s Handbook) . Prior to the twentieth century, the distinction
was relatively clear. Warships and naval auxiliaries were legitimate objects of
attack. Merchant ships and their crews, whether enemy or neutral, were not.
On the other hand, private property at sea had never had the protection
from seizure by the enemy that it enjoyed in land warfare. Under the doctrines
of blockade and contraband, goods destined for (and in the case of blockade,
being shipped from) an enemy port were subject to capture and condemnation
by prize courts. The traditional method of enforcing these doctrines was to stop
a suspect merchantman and exercise the right oi visit and search. Only if the
vessel resisted visit and search, was sailing in an enemy convoy, or attempted to
run a blockade was it subject to attack.
The advent of the submarine and aircraft and the measures adopted by the
adversaries to counteract these new means of naval warfare changed the
traditional law forever and irrevocably. Neither submarines nor aircraft were
capable o( conducting visit and search in the traditional manner. As a
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Horace B. Robertson, Jr.
consequence, in World War I, German submarines (and to a limited extent
aircraft) attacked enemy and neutral merchant ships without warning. The
Allied forces in turn armed their merchantmen, formed them into escorted
convoys, and generally incorporated their merchant fleets into the war effort.
During the interwar period, the former Allied States sought to outlaw the use
of submarines as commerce raiders through a series of diplomatic moves,
culminating in the London Protocol of 1936, 79 which purported to apply the
same rules to submarines that were applicable to surface warships. These
diplomatic efforts proved fruitless, however, and World War II saw a repetition
of the practices of World War I in an even more widespread and cruel
80
manner.
As a result of the practices of both the Axis and Allied powers in World
War II, and the assessment of those practices by the Nuremberg Tribunal in
the case of Admiral Karl Doenitz, 81 a consensus seems to have been achieved
among publicists and national military manuals that although the 1936
London Protocol retains its validity, the realities of modern warfare,
particularly global warfare, make it inapplicable in most situations. This
consensus is perhaps best expressed in the recent San Remo Manual, which
provides that enemy merchant ships may be attacked only if they have
become military objectives and states that the following activities may render
them military objectives:
(a) engaging in belligerent acts on behalf of the enemy, e.g., laying mines,
minesweeping, cutting undersea cables and pipelines, engaging in visit and
search of neutral merchant vessels or attacking other merchant vessels;
(b) acting as an auxiliary to an enemy's armed forces, e.g., carrying troops or
replenishing warships;
(c) being incorporated into or assisting the enemy's intelligence gathering
system, e.g., engaging in reconnaissance, early warning, surveillance, or
command, control and communications missions;
(d) sailing under convoy of enemy warships or military aircraft;
(e) refusing an order to stop or actively resisting visit, search or capture;
(f) being armed to an extent that they could inflict damage to a warship; this
excludes light individual weapons for the defense of personnel, e.g., against
pirates, and purely deflective systems such as 'chaff;
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Military Objective
(g) otherwise making an effective contribution to military action, e.g.,
carrying military materials. 82
Other manuals state the rules somewhat differently, but in essence prescribe
similar standards. 83
The San Remo Manual treats neutral merchant vessels separately, excluding
being armed from the list of activities rendering them military objectives and
adding refusal to stop or resisting visit, search, and capture. 84 The Manual
explicitly states that the mere fact that a neutral vessel is armed does not provide
ground for attack. 85 The U.S. manual is the most permissive of the manuals
examined in that it includes, as a final activity, authorizing attack on enemy
merchant vessels: . . . "If integrated into the enemy's war- fighting/war- sustaining
effort and compliance with the rules of the 1936 London Protocol would, under
the circumstances of the specific encounter, subject the surface warship to
imminent danger or would otherwise preclude mission accomplishment." 85 This
latter provision has been subjected to severe criticism by Frits Kalshoven, who
points out that the adoption of Additional Protocol I in 1977 vindicated the
view, at least for land warfare, that contribution to the "war effort" is too broad a
test for determining whether an object has become a military objective. He
suggests that the same should be true in naval warfare. 87
When the development of aircraft technology reached the point at which air
transportation became a factor in international commerce, the international
community attempted to adopt the same principles for civil aircraft that were
applicable to merchant ships. This was first manifested in the 1923 Hague Rules
of Air Warfare, 88 which, with respect to civil aircraft, closely mimic the rules
applicable to merchant ships. 89 Although the Hague Rules were never adopted
in binding form, they have influenced the development of the law in this field,
and the military manuals generally follow the pattern established in 1923. They
have likewise adopted the view that activities conducted by them similar to
those that would make merchant ships military objectives would also convert
civil aircraft into military objectives. Again, turning to the San Remo Manual as
the typical manifestation of this pattern, it provides that aircraft engaging in
any of the following activities will render them military objectives:
(a) engaging in acts of war on behalf of the enemy, e.g., laying mines,
minesweeping, laying or monitoring acoustic sensors, engaging in
electronic warfare, intercepting or attacking other civil aircraft, or
providing targeting information to enemy forces;
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Horace B. Robertson, Jr.
(b) acting as an auxiliary aircraft to an enemy's armed forces, e.g., transporting
troops or military cargo, or refueling military aircraft;
(c) being incorporated into or assisting tbe enemy's intelligence -gathering
system, e.g., engaging in reconnaissance, early warning, surveillance, or
command, control and communications missions;
(d) flying under the protection of accompanying enemy warships or military
aircraft;
(e) refusing an order to identify itself, divert from its track, or proceed for visit
and search to a belligerent airfield that is safe for the type of aircraft
involved and reasonably accessible, or operating fire control equipment
that could reasonably be construed to be part of an aircraft weapon system,
or on being intercepted clearly manoeuvring to attack the intercepting
belligerent aircraft;
(f) being armed with air-to-air or air-to-surface weapons; or
(g) otherwise making an effective contribution to military action. 90
Because attacks on civil airliners are likely to cause injury or death to embarked
civilians, they are exempted from attack while in flight, except in situations in
which their conduct is clearly hostile. 91
s we have seen, the principle of the military objective, though slow in
.coming to recognition as articulated in Additional Protocol I and
current military manuals, has been imbedded in the law of armed conflict for
several centuries. It appeared in numerous nineteenth and twentieth century
documents in the form of prohibitions against attacks against certain categories
of persons and objects such as undefended towns, churches, hospitals, historic
buildings, noncombatant personnel, and combatant personnel who were hors
de combat. The 1977 Protocol led the way in converting the principle from a list
of prohibited targets to a more usable concept for a military commander in
appraising whether a particular object or person could be lawfully attacked.
Both the old-style negative list of prohibited targets and the new-style
permissive principle of defining the military objective have their drawbacks.
The former allowed the literal-minded commander to assume that unless a
prospective target was on the prohibited list, he could attack it, perhaps
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Military Objective
downplaying the related principles of collateral damage, avoiding causing
unnecessary suffering, etc. The two-prong test of the latter gives the
commander a great deal more discretion and requires the commander to
balance the value of the target against the military advantage to be gained from
its destruction or capture, obviously importing the relative question of
proportionality into the equation. It must be remembered, however, that the
old prohibitions have not been excised by the adoption of the new standard of
the military object. They remain in effect in the various Hague Conventions of
1907, the Geneva Conventions of 1949, and the treaties for the protection of
artistic, scientific, and historic monuments and institutions. 92 When properly
applied, the two-prong test adds an additional layer of protection to those
objects and persons who should not and do not constitute legitimate military
objectives.
The general acceptance of the principle of the military objective into
customary international law, essentially as articulated in Additional Protocol I,
marks a step forward in promoting the humanitarian goals represented in the
law of armed conflict.
Notes
1. Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflict, Final Act of the Diplomatic Conference
on the Reaffirmation and Development of International Humanitarian Law applicable in Armed
Conflicts, published by the Swiss Federal Political Department, Sept. 26, 1977, at 115-183,
reprinted in THE LAW OF ARMED CONFLICTS: A COLLECTION OF CONVENTIONS,
RESOLUTIONS AND OTHER DOCUMENTS (Dietrich Schindler and Jiri Toman eds., 3d ed. 1988)
[hereinafter Additional Protocol I and Schindler and Toman, respectively] .
2. MICHAEL BOTHE ET AL., NEW RULES FOR VICTIMS OF ARMED CONFLICTS:
COMMENTARY ON THE TWO 1977 PROTOCOLS ADDITIONAL TO THE GENEVA
CONVENTIONS OF 1949, 321 (1982) [hereinafter BOTHEETAL].
3. Advisory Opinion of the International Court of Justice on the Legality of the Threat or
Use of Nuclear Weapons, 8 July 1996, 28 [hereinafter ICJ Advisory Opinion on Nuclear
Weapons], reprinted in 35 I.L.M. 809, 827 (1996). According to the Court, the second cardinal
principle is that it is prohibited to use weapons causing unnecessary suffering to combatants. Id.
4. See Theodor Meron, Shakespeare's Henry the Fifth and the Law of War, 86 AM. J. INT'L L. 1,
23 (1992).
5. For a brief summary of these early developments, see ESBJORN ROSENBLAD,
INTERNATIONAL LAW OF ARMED CONFLICT— SOME ASPECTS OF THE PRINCIPLE OF
DISTINCTION AND RELATED PROBLEMS 9, 53 (1977). For a fascinating analysis of the status of
the law of war during the medieval and English Renaissance periods and its influence upon the
development of the current law of armed conflict, see Meron, supra note 4.
6. JEAN JACQUES ROUSSEAU, THE SOCIAL CONTRACT OR PRINCIPLES OF POLITICAL
RIGHT (18th century trans., C. Frankel ed., 1947).
216
Horace B. Robertson, Jr.
7. Francis Lieber, Instructions for the Government of Armies of the United States in the Field,
originally published as U.S. War Department, Adjutant General's Office, General Orders No. 100
(Apr. 24, 1863) [Lieber Instructions], reprinted in Schindler and Toman, supra note 1, at 3.
8. Id., art. 24.
9. Id., art. 22.
10. Declaration Renouncing the Use in Time of War of Explosive Projectiles under 400
Grammes Weight, Dec. 11, 1868 [St. Petersburg Declaration], reprinted in Schindler and
Toman, supra note 1, at 101.
11. Brussels Conference of 1874, Final Protocol, Aug. 27, 1874, reprinted in Schindler and
Toman, supra note 1, at 25.
12. THE LAWS OF WAR ON LAND (OXFORD MANUAL), adopted by the Institute of
International Law at Oxford, 1880, reprinted in English in Schindler and Toman, supra note 1, at
35.
13. Id. at 37.
14. Convention (IV) Respecting the Laws and Customs of War on Land, Annex to the
Convention, Oct. 18, 1907, art. 25, 36 Stat. 2277, [hereinafter Hague IV] , reprinted in Schindler
and Toman, supra note 1, at 63.
15. Convention (IX) Concerning Bombardment by Naval Forces in Time of War, Oct. 18,
1907, art. 1, 36 Stat. 2351 [hereinafter Hague IX], reprinted in Schindler and Toman, supra note
1, at 811.
16. Hague IV, supra note 14, art. 26; Hague IX, supra note 15, art. 6.
17. Hague IV, supra note 14, art. 27; Hague IX, supra note 15, art. 5.
18. Hague IV, supra note 14, arts. 23(g), 28, 46, 47, 52, 53, 55 &56.
19. HAGUE RULES OF AIR WARFARE, drafted by a Commission of Jurists at The Hague, Dec.
1922-Feb. 1923 [hereinafter HAGUE AIR RULES], reprinted in Schindler and Toman, supra note
1, at 207.
20. LASSA OPPENHEIM, 2 INTERNATIONAL LAW: A TREATISE 519 (Hersch Lauterpacht
ed.,7thed. 1952).
21. In essence, this continued the dichotomy between the so-called "Hague" law (means and
methods of war) and the "Geneva" law (protection of victims of war) . This dichotomy was
obliterated in the Additional Protocols of 1977, which included provisions dealing with means
and methods of warfare, as well as those designed to further the protection of victims. This
development, among others, has led the International Court of Justice to conclude that, "These
two branches of the law applicable in armed conflict have become so closely interrelated that
they are considered to have gradually formed one single complex system, known today as
international humanitarian law. The provisions of the Additional Protocols of 1977 give
expression and attest to the unity and complexity of that law." ICJ Advisory Opinion on Nuclear
Weapons, supra note 3, at 27, 35 I.L.M. 827.
22. international committee of the red cross, commentary on the
Additional Protocols of 8 June 1977 to the Geneva Conventions of 1949, 587
(1987) [hereinafter ICRC COMMENTARY].
23. Id. at 588.
24. Id.
25. The Distinction between Military Objectives and Non-Military Objectives in General
and Particularly the Problems Associated with Weapons of Mass Destruction, Resolution
adopted by the Institute of International Law at its session at Edinburgh, Sept 9, 1969, reprinted
in 2 ANNUAIRE L'INSTITUT DE DROIT INTERNATIONAL 375 (1969) (English). In commenting
on the results of the Edinburgh Resolutions, the General Counsel of the U.S. Department of
217
Military Objective
Defense, in a letter concurred in by the Judge Advocates General of the Army, Navy, and Air
Force, stated that the requirement that there be an "immediate" military advantage for
destruction of an object for it to be classified as a military objective does not reflect "the law of
armed conflict that has been adopted in the practice of States." Letter dated Sept. 22, 1972, from
J. Fred Buzhardt, General Counsel of the Department of Defense, to Senator Edward Kennedy,
excerpts from which are quoted in A. Rovine, Contemporary Practice of the United States Relating
to International Law, 67 AM. J. INT'L L. 118, 122 (1973).
26. The Diplomatic Conference was preceded by two sessions of the Conference of
Government Experts, which was convened by the ICRC and which held two sessions in 1972
and 1973. Drafts prepared by these conferences, consolidated and harmonized by the ICRC,
served as draft texts for the Diplomatic Conference. For background, see ICRC COMMENTARY,
supra note 22, at xxxi.
27. These include Article 5 1 (protection of the civilian population), Article 53 (protection of
cultural objects and places of worship), Article 54 (protection of objects indispensable to the
survival of the civilian population), Article 55 (protection of the natural environment); Article
56 (protection of works and installations containing dangerous forces, such as dams, dikes, and
nuclear electrical generating stations), Article 57 (precautions in attack, in particular, measures
to avoid collateral damage), and Article 58 (precautions against effects of attacks by the party
under attack, such as relocating civilians in the area, etc.)
28. Additional Protocol I, supra note 1, arts. 48 & 52. Article 52 contains a third paragraph,
which reads as follows: "In case of doubt whether an object which is normally dedicated to
civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used
to make an effective contribution to military action, it shall be presumed not to be so used." It has
been omitted from the text since it does not form a part of the definition of a military objective,
but rather provides a rule of interpretation for the commander ordering or executing an attack.
29. See supra note 23.
30. Additional Protocol I, supra note 1, art. 49.3.
31. See INTERNATIONAL INSTITUTE OF HUMANITARIAN LAW, SAN REMO MANUAL ON
INTERNATIONAL LAW APPLICABLE TO ARMED CONFLICTS AT SEA 5 (1995) [hereinafter SAN
remo manual] .
32. The Laws of Naval War Governing the Relations Between Belligerents.-
Manual Adopted by the Institute of International Law (Oxford Manual of
NAVAL WAR), reprinted in English in Schindler and Toman, supra note 1, at 857.
33. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §
102(2) (1987).
34. Id., cmt. b.
35. Id.
36. DEPARTMENT OF THE NAVY, OFFICE OF THE CHIEF OF NAVAL OPERATIONS,
HEADQUARTERS, U.S. MARINE CORPS, DEPARTMENT OF TRANSPORTATION, U.S. COAST
Guard, The Commander's Handbook on the Law of Naval Operations, NWP
1-14M (Formerly NWP-9), MCWP5-21, COMDTPUB P5800.7, para. 6.1 (1995) [hereinafter
COMMANDER'S HANDBOOK] .
37. Id.
38. W. Michael Reisman and William Leitzau, Moving International Law from Theory to
Practice: the Role of Military Manuals in Effectuating the Law of Armed Conflict, in THE LAW OF
NAVAL OPERATIONS 1 (64 International Law Studies, Horace Robertson ed., 1991).
39. Richard Baxter, Multilateral Treaties as Evidence of Customary International Law, 41 BRIT.
Y.B. INT'L L. 275, 300 (1965-6).
218
Horace B. Robertson, Jr.
40. See Michael Matheson (Deputy Legal Adviser, U.S. Department of State), Remarks in
Session One: The United States Position on the Relation of Customary International Law to the 1977
Protocols Additional to the 1949 Geneva Conventions, in The Sixth Annual American Red
Cross-Washington College of Law Conference on International Humanitarian Law, 2 AM. U. J. INT'L
L. & POL'Y 419, 426 (1987) [hereinafter Sixth Annual Conference] ; Lt Col Burrus M. Carnahan,
USAF, id. at 508-9. See also Panel Discussion, Customary Law and Additional Protocol I to the
Geneva Conventions for Protection of War Victims: Future Directions in Light of the U.S. Decision Not
to Ratify, 81st Annual Meeting of the American Society of International Law, 1987 PROC.
A.S.I.L. 27, remarks of M. Matheson at 29-30; B. Carnahan at 37 indicating that Article 51,
paragraph 2 which prohibits direct attacks on the civilian population "may well restate current
customary law. . . . The definition of military objectives in article 52 has already been
incorporated in some military manuals, as well as in treaties other than the protocol; it almost
certainly represents customary international law." It should be noted, however, that spokesmen
for the U.S. Government have explicitly expressed disagreement with the prohibition of reprisals
against the civilian population which is found in Article 51 as well as in Article 52, para. 1.
Matheson, supra at 426; Remarks of Abraham Sofaer, in id. at 469.
41.GARes. 2444 (XXIII), U.N. GAORSupp. (No. 18) at 50, U.N. Doc. A/7218 (1969).
42. Letter of Sept. 22, 1972, supra note 25. See also THEODOR MERON, HUMAN RIGHTS AND
HUMANITARIAN NORMS AS CUSTOMARY LAW 68 ff. (1989).
43. See note 39 supra and accompanying text.
44. Federal Ministry of Defence of the Federal Republic of Germany,
Humanitarian Law in Armed Conflicts— Manual (DSK W207320067), paras.
441-442 (1992) (English translation by German Ministry of Defence; internal citations omitted)
[hereinafter GERMAN MANUAL] .
45. Royal Australian Air Force, Operations Law for RAAF Commanders, DI
(AF) AAP 1003, paras. 8-4, 8-5 (1st ed., 1994) [hereinafter RAAF MANUAL].
46. Director of Law/Training, Office of the Judge Advocate General, Canadian National
Defence Headquarters, CANADIAN FORCES LAW OF ARMED CONFLICT MANUAL (Second
Draft) , para. 516 (undated) [hereinafter CANADIAN DRAFT MANUAL] . In the introduction, the
manual states that it was prepared on the assumption that Canada would ratify the two 1977
Protocols Additional. Id. at i.
47. The Army manual currently in effect was adopted in 1956 and thus does not take account
of developments in the law of armed conflict since that date. It does, however, incorporate the
relevant provisions from the HAGUE RULES which exempt certain categories of persons and
objects from attack and contains some general language apparently recognizing as customary
international law the general principles of distinction and the military objective. Examples are
found in paragraph 25 ("[I]t is a generally recognized rule that civilians must not be made the
object of attack directed exclusively against them."); paragraph 56 ("Devastation as an end in
itself or as a separate measure of war is not sanctioned by the law of war. There must be some
reasonably close connection between the destruction of property and the overcoming of the
enemy's army."). DEPARTMENT OF THE ARMY, THE LAW OF LAND WARFARE (FM 27-10), 16,
23 (1956).
It is the author's understanding that the Department of Defense is in the process of preparing
a joint service instruction on the law of armed conflict. The Judge Advocate General of the
Army is the lead agency in this project. Conversation between the author and Hays Parks, Office
of the Judge Advocate General of the Army.
219
Military Objective
48. Department of the Air Force, International Law— The Conduct of Armed
CONFLICT AND AIR OPERATIONS, AFP 110-31, Nov. 19, 1976, para. 5-3b(l) [hereinafter Air
Force Pamphlet].
49. COMMANDER'S HANDBOOK, supra note 36, para. 5.4.2.
50. Id. at para. 8.1.1. (emphasis supplied).
51. Louise Doswald-Beck, The San Remo Manual on International Law Applicable to Armed
Conflicts at Sea, 89 AM. J. INT'L L. 192, 199 (1995).
52. DEPARTMENT OF THE NAVY, ANNOTATED SUPPLEMENT TO THE COMMANDER'S
HANDBOOK ON THE LAW OF NAVAL OPERATIONS, NWP 9 (Rev. A)/FMFM 140, para. 8.1.1.,
note 9 (1989) [hereinafter ANNOTATED SUPPLEMENT] .
53. Annotated Supplement to the Commander's Handbook on the Law of
NAVAL OPERATIONS, NWP M4M (Formerly NWP 9 (Rev. A)), MCWP 5-21, COMDTPUP
P5800.7, para. 8.1.1, note 9 (1997).
54. Id., note 11. These target sets were Leadership Command Facilities; Electricity
Production Facilities; Telecommunications and Command, Control, and Communication
Nodes (including civil television and radio installations since they could easily be used for C 3
backup for military purposes and were used for Iraqi propaganda); Strategic Integrated
Air-Defense System; Air Forces and Air Fields; Nuclear, Biological and Chemical Weapons
Research, Production, and Storage Facilities; Scud Missile Launchers and Production and
Storage Facilities; Naval Forces and Port Facilities; Oil Refining and Distribution Facilities;
Railroads and Bridges; Iraqi Army Units; and Military Storage and Production Sites. Id.
55. Id. para. 8.1.1. The annotation further states that, "Whether this rule permits attacks on
war-sustaining cargo carried in neutral bottoms at sea, such as by Iraq on the tankers carrying oil
exported by Iran during the Iran-Iraq war, is not firmly settled. Authorization to attack such
targets is likely to be reserved to higher authority." Id. at note 11. In this respect, Ms.
Doswald-Beck states that participants in the San Remo Round Table "indicated that the sinking
during the Iran-Iraq War, albeit not as frequent as those during the Second World War, should
not be seen as the most significant precedent for an assessment of contemporary law, in view of
the extent of violations of international humanitarian law during that conflict generally and the
protests that ensued." Doswald-Beck, supra note 51, at 200.
56. See, e.g., Hague IV, supra note 14, art. 27; Hague IX, supra note 15, art. 5.
57. According to a 1940 British study of the Royal Air Force Bomber Command night
operations, "two-thirds of all aircrews were missing their targets by over 5 miles." AIR FORCE
PAMPHLET, supra note 48, para. 5-4d. Even the so-called "precision" daylight bombing by the
U.S. Eighth Air Force was precise only in comparison to the night bombing by the British bomber
force. According to an Eighth Air Force study, for the September to December 1944 period, only
22 percent of all visually dropped bombs hit within 1,000 feet of their aim point, while only two
percent of bombs dropped using blind navigational techniques or radar bombing fell within 1,000
feet of their target. RICHARD HALLION, STORM OVER IRAQ: AIR POWER AND THE GULF WAR
11-12, note 26 (1992), quoting USAAF, AAF Bombing Accuracy Report #2 (Eighth Air Force
Operational Research Section, 1945), Chart 2, "Distribution of Effort and Results."
58. Hamilton DeSaussure, conference remarks, in Sixth Annua/ Conference, supra note 40, at
512; see a/50 Burrus Carnahan at 516. The United States Air Force manual seems to give some
credence to this idea, at least with respect to attacks on civil aircraft, stating, "As a practical
matter, the degree of protection afforded to civil aviation and the potential military threat
represented, varies directly with the intensity of the conflict." AIR FORCE PAMPHLET, supra note
48, para. 4-3b.
220
Horace B. Robertson, Jr.
59. INTERNATIONAL INSTITUTE OF HUMANITARIAN LAW, SAN REMO MANUAL ON
INTERNATIONAL LAW APPLICABLE TO ARMED CONFLICT AT SEA "EXPLANATION" 116
(Louise Doswald-Beck ed., 1995) [hereinafter SAN REMO MANUAL "EXPLANATION"].
60. BOTHE ET AL, supra note 2, at 322. The San Remo Round Table was also initially divided
between those members who wished to provide a general definition of military objectives and
those who wished to provide a list either of vessels and objects that might be attacked or of those
which were exempt. Their eventual solution was to proceed with a general definition, but to
supplement it with a limited list of those vessels and aircraft which were exempt from attack,
either by virtue of their status (e.g., hospital ships) or their employment (e.g., vessels engaged in
missions granted special protection such as cartel vessels). See SAN REMO MANUAL
"Explanation," supra note 59, at 114-16.
61. "Military objectives" obviously includes combatants, although there is no explicit
statement in Additional Protocol I to that effect. As stated by BOTHE ET AL.:
The term "military objectives" is used in different senses in the clauses declaring the
two basic principles. In regard to the first clause [of article 48] dealing with the principle of
distinction the term "military objectives" is used in contrast to "civilian objects," and
"combatants" is used in contrast to "civilians." In the last clause, however, "military
objectives" is used as the sole permitted object of the military operations. It would, of
course, be manifestly absurd to conclude from this somewhat imprecise drafting that
combatants are not a legitimate object of attack. In any event, the context of Arts. 37, 41,
42, 43(2), 51(3) and 52(2) makes it clear that combatants, as well as objects having
military value, are included within the term "military objectives" as used in Protocol I.
BOTHE ET AL., supra note 2, at 285.
The ICRC COMMENTARY confirms this view, stating that "the definition is limited to objects
but it is clear that members of the armed forces are military objectives. ..." ICRC
COMMENTARY, supra note 22, at 635.
Two of the military manuals that have been examined have explicitly incorporated
"combatants" into their definitions of "military objectives." See, e.g., COMMANDER'S HANDBOOK,
supra note 36, at para. 8.1.1; CANADIAN DRAFT MANUAL, supra note 46, at para. 516.
62. ICRC COMMENTARY, supra note 22, at 636.
63. Id.
64. BOTHE, ET AL., supra note 2, at 324-5 (emphasis in original text).
65. SAN REMO MANUAL "EXPLANATION," supra note 59, para. 40.12; L. Doswald-Beck,
supra note 51, at 199.
66. BOTHE ET AL., supra note 2, at 324. In a footnote supporting this statement, BOTHE ET
AL. refer, inter alia, to the U.S. denial of claims for destruction of British-owned cotton in the
Civil War, not on the ground that raw cotton had any value as an implement of war, "but
because 'in the circumstances ruling at the time' it was the Confederacy's chief export and thus
the ultimate source of all Confederate weapons and military supplies." Id. at note 15.
67. San Remo Manual "Explanation," supra note 59, para. 40.12.
68. ANNOTATED SUPPLEMENT, supra note 52, para. 8.1.1, note 11, citing 6 Papers Relating
to the Treaty of Washington (Report of U.S. Agent) 52-57 (1874).
69. Id. The San Remo Round Table also states that
The doctrine of contraband is not applicable to exports from enemy territory. With
regard to the latter point, there was a division of views whether measures other than
221
Military Objective
blockade may be used to block exports that by sale or barter sustain the enemy's war effort.
Even though a number of participants supported the view that today the doctrine of
contraband may be applied to exports from enemy territory, the Round Table at this stage
felt unable to extend the traditional law to that effect. That, however, does not prejudice
the authority of the UN Security Council under Chapter VII of the UN Charter.
San remo Manual "Explanation," supra note 59, at 216.
70. Id. at para. 67.27.
71. BOTHE ET AL., supra note 2, at 324-5. The authors illustrate their point by describing the
Allied attacks on the Pas de Calais area of France prior to the Normandy invasion of 1944. The
military advantage was not the reduction of German military strength in that area but rather to
deceive the Germans as to where the invasion would take place. Id.
72. ICRC COMMENTARY, supra note 22, at 637.
73. Id., at 683-5; BOTHE ET AL., supra note 2, at 365.
74. See notes 1 and 2 supra and accompanying text.
75. See Sect. II above.
76. Id.
77. As far as I have been able to determine, the U.S. Navy's 1955 LAW OF NAVAL WARFARE
MANUAL (NWIP 10-2), which was the immediate predecessor to the current COMMANDER'S
HANDBOOK (NWP 1-14M, previously designated NWP 9), does not mention the term "military
objective" nor is the term found in the index of ROBERT W. TUCKER, THE LAW OF WAR AND
NEUTRALITY AT SEA (50 International Law Studies, 1955), which was published
contemporaneously and includes the 1955 manual as an appendix.
78. See, e.g., ch. 8, "The Law of Targeting," of the COMMANDER'S HANDBOOK, supra note
36; TARGETING ENEMY MERCHANT SHIPPING, (65 International Law Studies, Richard J.
Grunawalt ed., 1993); Sally Mallison & William Mallison, Naval Targeting: Lawful Objects of
Attack, in THE LAW OF NAVAL OPERATIONS, supra note 38, ch. IX.
79. Proces-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the
Treaty of London of 22 April 1930, 173 L.N.T.S. 353-37 (1936), reprinted in Schindler &
Toman, supra note 1, at 881-82.
80. For more detailed accounts of the progression of events recounted here, see Mallison &
Mallison, supra note 78; J. Jacobson, The Law of Submarine Warfare Today, in THE LAW OF
NAVAL OPERATIONS, supra note 78, at 205; L.F.E. Goldie, Targeting Enemy Merchant Shipping:
An Overview of Law and Practice, in TARGETING ENEMY MERCHANT SHIPPING, supra note 78, at
2; Sally Mallison & William Mallison, The Naval Practices of Belligerents in World War II: Legal
Criteria and Development, in id. at 87; Horace B. Robertson, Jr., U.S. Policy on Targeting Enemy
Merchant Shipping: Bridging the Gap Between Conventional Law and State Practice, in id. at 338.
81. For assessments of the meaning of the Judgment of the Nuremberg Tribunal in Admiral
Doenitz's case with respect to the status of the law governing submarine and air attacks on
merchant ships, see D. P. O'Connell, International Law and Contemporary Naval Operations, 44
BRIT. Y.B. INT'L L. 52 (1970) ; Sally Mallison & William Mallison, Naval Practices, supra note 80,
at 87; and Comments on the Mallisons' essay by Mark W. Janis and William J. Fenrick, id. at 104
and 110 respectively.
82. SAN REMO MANUAL, supra note 31, para. 60.
83. See William J. Fenrick, The Military Objective and the Principle of Distinction in the Law of
Naval Warfare, in REPORT, COMMENTARIES AND PROCEEDINGS OF THE ROUND-TABLE OF
EXPERTS ON INTERNATIONAL HUMANITARIAN LAW APPLICABLE TO ARMED CONFLICTS AT
SEA, Ruhr-Universitat Bochum, Nov. 10-14, 1989, 31-37 (Wolff Heintschel von Heinegg ed.,
222
Horace B. Robertson, Jr.
1991), for a comparison of the rules contained in the Canadian, French, Australian and United
States Manuals. The subsequently issued German manual conforms essentially to the same
listing. GERMAN MANUAL, supra note 44, at para. 1025.
84. SAN REMO MANUAL, supra note 31, at para. 67.
85. Id.
86. COMMANDER'S HANDBOOK, supra note 36, para. 8.2.2.2. See also para. 8.3.1 which
contains regard to attacks on enemy merchant ships by submarines.
87. Frits Kalshoven, Comments on H. B. Robertson's Paper: U.S. Policy on Targeting Enemy
Merchant Shipping: Bridging the Gap Between Conventional Law and State Practice, in TARGETING
ENEMY MERCHANT SHIPPING, supra note 78, at 358, 362.
88. Hague Air Rules, supra note 19, at 207.
89. See id., arts. 49-60.
90. SAN REMO MANUAL, supra note 31, para. 63.
91. See SAN REMO MANUAL, supra note 31, paras. 53 and 56. Compare COMMANDER'S
HANDBOOK, supra note 36, para. 8.2.3; GERMAN MANUAL, supra note 44, para. 1036;
CANADIAN DRAFT MANUAL, supra note 46, para. 628. For a more extensive discussion of the
status of civil aircraft in armed conflict, see Horace B. Robertson, Jr., The Status of Civil Aircraft in
Armed Conflict, _ ISR. Y.B. I'NTL L. (1998) (forthcoming).
92. Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments
(Roerich Pact), Apr. 15, 1935, 49 Stat. 3267, reprinted in Schindler and Toman, supra note 1, at
737; Convention for the Protection of Cultural Property in the Event of Armed Conflict, May
14, 1954, 249 U.N.T.S. 216, reprinted in Schindler and Toman, supra note 1, at 745.
223
XI
Crafting the Rules of Engagement
for Haiti
Stephen A. Rose
There was a lot of pressure on the SJA to come up with the right
ROE — not only working with the local staff — but in this case, working
directly with the Department of Defense. But the real burden that falls on
the SJA is advising the commander and providing the means for the
commander to translate ROE for that Marine on the ground.
— Lieutenant General Anthony Zinni
Marine Corps Gazette
February 1996
D
URING THE COURSE OF A MILITARY CAREER, most of us have at
least one occasion to stand at a crossroad of history — to participate
directly in shaping an event that might someday be studied in tenth grade
history books. My turn came in 1994. The event was Haiti.
By lucky timing, my tour as Staff Judge Advocate (SJA) for the U.S. Atlantic
Command (USACOM) , which then included the Caribbean in its geographic
area of responsibility, began in the spring of 1994 — about the same time when
serious planning had begun for military intervention in Haiti. Aside from good
timing, I was fortunate in two other ways.
Crafting the Rules of Engagement for Haiti
First, the USACOM Commander-in-Chief, Admiral Paul Miller, believed in
using his legal staff in a proactive mode. As a result, the SJA became a charter
member of the inner circle tasked with developing the campaign plan. This
early entree was useful when it became time to craft rules of engagement (ROE)
embodying the commander's intent. What could not be foreseen, however, was
that the ROE for Haiti would require rapid retooling as the mission shifted from
a nonpermissive, forcible entry to a permissive administrative walk-on
involving cooperation with Haitian forces. This initial phase of the Haiti
campaign proved to be a harbinger of some of the ROE conundrums that were
encountered during the later UN withdrawal from Somalia and the problems
currently being encountered in Bosnia.
My second slice of good fortune was in having Professor Jack Grunawalt as
an ROE mentor — both during my time as a student at the Naval War College,
and, since then, on an informal basis for aid when difficult questions of
interpretation and precedent arise. He has long been my "pragmatics" teacher,
especially adept at blending ROE theory with practical solutions for real-world
challenges. His thousands of hours of teaching ROE issues have influenced
several generations of operational lawyers involved in military campaigns.
Those who have read this far will recognize that my essay differs in tone and
content from other materials in this liber amicorum. It is part homage to Jack
Grunawalt, part analysis of selected ROE issues, and part reportage of what
took place behind the scenery during the initial phase of the Haiti campaign.
Several excellent synopses of the Haiti ROE have already been written. 1 My
goal is to complement these studies by digging deeper along unmined veins.
About 90 percent of the internal DoD deliberations over the final language of
the Haiti rules — a dialogue often more spirited than commentators
realize — arose from 10 percent of the draft text.
Every ROE package has a handful of clauses that serve as tone-setters and
fulcrums for an operation. In essence, ROE become the umbilical cord
connecting the National Command Authorities (NCA) to the lowliest Private
in harm's way. ROE also serve as a reliable barometer, especially in military
operations other than war, for gauging whether political goals and military
means are properly synchronized. If Clausewitz were reviewing recent
operations in Somalia, Haiti, and Bosnia, he would likely be astonished by the
finicky degree to which the U.S. military calibrates its ROE. 2 What follows are
two vignettes illustrating what happened behind the planning curtain when
lawyers, operators, and policy makers sought to conjure up optimal ROE for the
beginning of the Haiti campaign.
226
Stephen Rose
Friend, Foe, or Freelance?
In the spring of 1994, USACOM activated Joint Task Force (JTF)180,
spearheaded by the XVIII Airborne Corps, to develop an operational plan
(OPLAN 2370) for forced entry into Haiti. It was unclear how much armed
opposition could be expected from the military junta then running the country,
but the JTF 180 plan relied on surprise and overwhelming force to reduce U.S.
casualties 3 by minimizing the period of actual engagement. A draft of the ROE
annex for this plan was ready by mid-June.
One cornerstone of the proposed ROE was designation of the armed forces
of Haiti as "hostile" — i.e., they were subject to attack on recognition without
first having to commit a hostile act or demonstrate hostile intent against U.S.
forces. The troublesome phrase underlying this concept turned out to be "on
recognition." It was relatively easy to categorize Haiti's armed forces. They
consisted of the Forces Armees D'Haiti (FADH) and its auxiliary, the
well-armed National Police, known as the FRAPH. For ROE purposes, all other
Haitians were deemed noncombatants.
As the summer of 1994 wore on, however, this distinction between Haitian
armed forces and civilians began to blur. By August, U.S. intelligence reports
noted that many members of the FADH had begun wearing civilian clothes
under their uniforms, and almost all of the FRAPH had discarded their police
uniforms in favor of mufti while on duty. Reports also identified the formation
of a civilian militia loosely organized by the FADH. This militia had no uniforms
or distinctive badges, but was expected to be issued weapons in advance of
perceived hostilities and to function as a kind of Haitian Volkssturm to defend
the country.
In reaction to this development, ROE planners at USACOM began to draft
clarifying language to identify "hostile" Haitian forces — now running the
gamut from regulars (FADH) to paramilitary (FRAPH) to civil militia — in terms
of weaponry rather than apparel. This attempted refinement also proved to be
problematic. In mid-August, the U.S. Defense Attache at Port au Prince
estimated that Haitian civilians possessed at least 40,000 firearms. 4 Given the
chronic violence and vigilantism that plagued the country, most Haitians who
could afford to do so had armed themselves. The typical family arsenal
consisted of machetes, a shotgun or rifle, several handguns, and sometimes
automatic weapons and grenades. Another factor fueling the potential for
violence was continuing antagonism between the Haitian upper classes, which
supported the military junta, and the followers of exiled President
227
Crafting the Rules of Engagement for Haiti
Jean-Bertrand Aristide, who thirsted to settle their grievances with the small
clique in economic and political power.
Thus, U.S. planners had to anticipate that the initial stages of a forcible
entry might encounter armed elements of the Haitian populace pursuing
different goals: some ready to engage American forces; some eager to take
advantage of a chaotic situation to carry out acts of political revenge or looting;
and some trying to defend families and property. All were likely to be armed,
and most would be in civilian attire.
In such a confused environment, choice of ROE serves to allocate risk.
Status-based ROE, in which pre-declared enemy forces are declared hostile and
may be shot on sight, minimize the risk to U.S. troops but may lead to
significant civilian casualties if enemy forces are not readily distinguishable
from the general populace. Conversely, conduct-based ROE, which typically
authorize force only in response to hostile acts or intentions, tend to reduce
civilian casualties while increasing the risk to U.S. forces. Given the domestic
political controversy swirling around the proposed military intervention in
Haiti, the United States could ill afford American casualties; but neither could
it permit a humanitarian intervention, only reluctantly sanctioned by the
United Nations, to result in a bloodbath for Haitians.
In early September, the legal staffs at USACOM and in the Chairman of the
Joint Chiefs of Staff s office continued work on ways to bridge the gap between
status-based and conduct-based ROE for Haiti. The challenge was to develop a
basic engagement criterion that balanced the risk of casualties and had clear
meaning for the troops involved. The two legal staffs began at opposite ends of
the ROE spectrum but eventually converged to a shared solution.
USACOM continued to press for declaration of Haitian armed forces as
hostile (i.e., status-based ROE) but recommended that identification of
adversary forces be pegged to weapons rather than to uniforms, badges, or
other customary indicia. The operative sentence of our recommendation was
couched in terms of a presumption:
You may presume that civilians in public armed with crew-served weapons,
automatic weapons, rifles or shotguns are members of the FADH or National
Police, and therefore may be treated as hostile.
The Joint Staff favored conduct-based ROE even for the initial hostilities
phase and proposed that the final phrase in the USACOM draft be modified to
read: ". . . and therefore should be treated as potentially hostile and dealt with
accordingly using all measures short of force if possible." 6 In essence, this was a
self-defense regimen dressed up with some extra adjectives and adverbs to
convey a more assertive tone. USACOM continued to press the issue.
228
Stephen Rose
The Joint Staff then offered other modifications to stiffen the self-defense
language:
. . . and therefore should be treated as potentially hostile.
A. Where hostile acts or intent are observed, deadly force is authorized.
B. Where no hostile intent or acts are observed, all measures short of deadly
force, consistent with mission accomplishment and security of the force, may be
employed. 7
Albeit self-defense with an attitude, on the whole this was still self-defense. 8
USACOM continued to press.
As a contingency measure, discussion shifted to refining USACOM's
proposal for a weapon-based rule. Since it was known that a sizable portion of
the Haitian populace lawfully owned and openly carried firearms, it was clearly
overreaching to declare all armed civilians encountered in public areas as
hostile. At the same time, it was equally clear that persons armed with
crew-served or automatic weapons could reasonably be presumed to be
members of the Haitian armed forces. The real debate arose over how to treat
Haitians armed with shotguns and rifles.
This became known in joint legal circles as the "long-gun" dispute.
USACOM's original position had been to include both rifles and shotguns in
the adversary identification matrix. The Joint Staff concluded, with some
justification, that range rather than length of weapon should be the
determining factor. USACOM planners yielded, but fretted that U.S. troops
would be hard-pressed to distinguish rifles from shotguns in time to apply
hostilities ROE to the former and self-defense ROE to the latter, especially in
the uncertain light of the first hours of a pre-dawn assault.
Three days before the scheduled attack date on 19 September, the NCA
approved the final ROE package for a nonpermissive entry. The relevant rule is
a hybrid of options debated during the preceding fortnight:
You may presume that civilians in public armed with crew-served weapons,
automatic weapons, or rifles are members of the FADH, National Police, or
paramilitary groups, and therefore may treat them as hostile. Civilians in public
armed with shotguns or pistols are presumed to be potentially hostile, but deadly
force is not authorized unless such persons use or threaten to use armed force
against U.S. troops, U.S. citizens, or designated foreign nationals. 9
229
Crafting the Rules of Engagement for Haiti
In retrospect, it is probably fortunate that a last-minute agreement with the
Haitian leaders eliminated the need to use these ROE. 10 To be effective, such
rules need to model real-world activities and choices. Despite weeks of
discussion, the judge advocates involved in crafting the ROE for a pre-dawn
airborne assault on Haiti were never fully satisfied that they had captured the
fractal messiness of what lay ahead. The tradeoffs built into the final package
strongly supported mission accomplishment — rapid elimination of armed
resistance in Haiti — while fixing a reasonable, if somewhat artificial,
breakpoint to distinguish noncombatants. Although OPLAN 2370 belongs to
the dustbin of history, the ROE issues that surfaced during its construction were
not unique and continue to challenge U.S. planners in current operations.
The Specter of Mission Creep
On 18 September 1994, U.S. forces were primed for a nonpermissive, forced
entry into Haiti using hostilities ROE. The following day, pursuant to the
Carter Agreement, they entered Haiti permissively under peacetime ROE.
Their basic mission was to preserve essential civic order and establish a secure
environment for the restoration of Haiti's legitimate government. 11
In this effort to maintain public order, U.S. forces had an unlikely partner,
their erstwhile adversary of the previous day, the FADH. The Carter
Agreement had reserved a significant role for the FADH to continue routine
police duties during the transition period. Direct involvement in foreign law
enforcement was a task that U.S. military planners were loathe to tackle.
Recent experience with "mission creep" in Somalia reinforced the notion that
law enforcement responsibilities in a shattered country often become an
operational tar baby for military units.
On the eve of the American entry into Haiti, it appeared that U.S. policy
makers were comfortable treating "essential civic order" as a macro
requirement to prevent widespread chaos and loss of life within the indigenous
population rather than as a guarantee of U.S. protection for individual citizens.
On 20 September, however, one of the more notorious incidents of the Haiti
campaign ended up trumping, at least temporarily, DoD's deep-rooted anxiety
about mission creep. Using brute force, Haitian police dispersed a crowd o(
pro-Aristide demonstrators which had gathered in a festive mood at the edge of
a marshalling area for arriving U.S. units. Also on hand were numerous
representatives from the media, who videotaped a street vendor being clubbed
to death while U.S. troops stood by passively. Newspapers and television
networks reported the incident extensively, lambasting policy makers and
230
Stephen Rose
military planners for crippling troop effectiveness with inadequate ROE. 12
When new ROE cards appeared the next day, authorizing U.S. forces to
intervene to prevent death or serious injury to Haitians, news reports
understandably attributed this modification to the media uproar of the day
before. 13
The irony is that this "change" in ROE had already been set into motion on
18 September, before the first soldier set foot in Haiti, and had anticipated the
sort of incident that actually happened. Unfortunately, staffing delays held up
execution of the policy shift and dissemination of the change in ROE until a day
after the fatal beating. In part, this delay was procedural — stemming from the
laborious nature of the review process for modifying engagement rules of
national importance. In part, the delay was substantive — a by-product of an
ongoing debate about the role of the FADH during the interregnum period and
the need to disarm Haitian society. To understand how all these variables
interacted to create the new ROE card that appeared on 20 September, it is
worth a short tour inside the ROE "sausage factory" that existed at the time.
From the beginning, military planners had recognized that the issue of
Haitian-on-Haitian crime would be crucial. By June 1994, the ROE cards
designed for both the hostilities and post-hostilities phases of the
nonpermissive, forcible entry plan, Operation Uphold Democracy (OPLAN
2370 for JTF 180), contained explicit guidance for the troops:
Detain persons suspected of committing a serious criminal act (any act
committed after H-hour that would constitute the offense of homicide,
aggravated assault, arson, rape, robbery, burglary, or larceny if committed in the
United States). Use the minimum force necessary, up to and including deadly
force. Use only non-deadly force to detain civilians suspected of committing a
serious criminal act that does not pose a serious threat to human life (e.g.,
larceny). 14
The analogous card for the permissive entry plan, Operation Maintain
Democracy (OPLAN 2380 for JTF 190), contained no such guidance, which
explains why U.S. forces looked on passively as the Haitian police administered
a five-minute fatal beating to the vendor on 20 September. The closest
approximation was a rule allowing intervention in a defensive mode.
You may use necessary force to stop, disarm, and detain members of the Haitian
military, police, other armed persons, or other persons committing hostile acts or
showing hostile intent. Stop and detain other persons who interfere with your
mission. 15
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Crafting the Rules of Engagement for Haiti
In this context, the range of what could be protected was set out in a prefatory
note to the soldier card:
Nothing in the ROE limits your right to use necessary force to defend yourself,
your fellow servicemembers, your unit, other JTF personnel, key facilities, and
property designated by your commander. 16
Armed with these ROE, it would have taken a bold commander to interpret
them on D+l as including protection of Haitian nationals.
So, how did the disconnect arise between OPLAN 2370 and OPLAN 2380? It
is misleading to suggest that OPLAN 2370 was more bellicose due to its primary
focus as a forced entry plan; the same intervention rule showed up in the 2370
post-hostilities card, which covered a range of civil-military operations
equivalent to those being dealt with in OPLAN 2380. Part of the answer lies in
the rigorous compartmentalization of OPLAN 2370. Although the two plans
were developed in parallel, the JTF 180 team fleshing out OPLAN 2370 could
not share ROE with its JTF 190 counterparts preparing OPLAN 2380 until a few
days before the execution date. 17 USACOM had visibility over both plans as
they developed, but overlooked the ROE difference until about two weeks
before the expected D-Day. First realization of the difference in early
September did not set off alarm bells within the USACOM staff, since the
working expectation at that time was that OPLAN 2370/JTF 180 ROE would
control during the first stages of any incursion. Nonetheless, the ROE team at
USACOM began to draft a request to the Joint Staff to crosswalk relevant JTF
180 rules into JTF 190.
At this point, approximately 10 September, matters bogged down.
USACOM and JTF 190 quickly agreed on the need for authority to intervene in
Haitian-on-Haitian violence. Both sides concurred that deadly force was
appropriate, if necessary, to prevent death or serious physical injury. CJTF 190
wanted to go a step further, however, and suggested that the original
formulation, allowing only non-deadly force to detain Haitians committing
property crimes, might be too weak to control looting. After further discussion,
a distinction was made between fleeing looters (who could not be engaged with
deadly force) and looters who posed a threat to U.S. personnel seeking to
detain them (deadly force authorized in self-defense, if necessary). In essence,
neither side was eager to push for a rule of engagement permitting thieves to be
shot in the back. 18
A similar question arose regarding disarmament. USACOM directed JTF 190
to develop an assertive weapons control program to reduce the potential for
street violence. Haitian law generally allowed its citizens to be armed in public,
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Stephen Rose
but JTF 190's approved ROE specified that a soldier "may use necessary force to
stop [and] disarm . . . armed persons." 19 On 10 September, the Staff Judge
Advocate for JTF 190 sent me a fax seeking clarification on the degree of force
that could be used to execute a disarmament policy.
This command [JTF 190] is highly concerned about possible limitations on its
ability to disarm the population. Specifically, may deadly force be used, if
necessary, when an armed civilian flees during our attempt to disarm? 20
This question revisits in another guise the fleeing looter scenario discussed
above. By suggesting that continued possession of a weapon might per se be a
threat to either the security or mission of the force, JTF 190 was seeking a return
to status-based ROE for a limited category of individuals. A few days later, the
CJTF 190 raised this same issue with the USACOM Deputy CINC, arguing the
existence of an ROE-mission mismatch:
For instance, if a small patrol comes around a corner in Port-au-Prince and there
is a Haitian ten yards away with a rifle who then runs, the patrol cannot use
deadly force to stop him. Thereafter, all Haitians with weapons will run, and the
disarmament mission cannot be accomplished. 21
For several days more, discussion continued over the best way to calibrate
the ROE to critical sub-tasks such as disarmament, curfew enforcement, and
deterrence of looting, all of which supported the main mission of establishing a
secure and stable environment. By D-2, 17 September, USACOM sent the Joint
Staff its package of recommended ROE changes to "insure a seamless
hand-over between CJTF 180 and CJTF 190." 22 The Chairman, serving as
interlocutor for the Secretary of Defense, 23 messaged USACOM on D-Day, 19
September, that the changes had been approved as submitted. 24 In a nutshell,
deadly force was authorized to detain persons observed committing crimes
involving death or serious injury; non-deadly force was available to control
property crimes, enforce curfews, stop looting, and disarm Haitians. 25 Hours
later, USACOM signaled approval to JTF 180 and JTF 190 headquarters, 26 and
dissemination to troops in the field took place during the next 24 hours, but not
in time to prevent the beating death on D+ 1.
On first reflection, this one-day dissemination period may seem to be slow,
but the implementation process involved training deployed troops to cope with
an expanded set of responsibilities. Explaining whether robbery, which is a
crime involving the taking of property from someone by force, authorized a
deadly or non-deadly intervention response was one of several adventures that
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Crafting the Rules of Engagement for Haiti
the JTF 190 legal advisors faced in sorting out the new ROE for their
commander and troops. 27 This overall episode aptly illustrates the 50 percent
rule that can plague ROE development — on controversial issues, each
successive review level tends to use up half of the remaining time before
D-Day. As a result, most of the available time gets absorbed in policy
deliberations, often creating a frantic scramble when it comes time for
dissemination to the trigger-puller in the field.
In retrospect, it also seems that the long debate about mission creep led to
compromises that were more lawyer-friendly than troop-friendly. As Jack
Grunawalt always hammered home in his lectures, ROE should be written for
field use, not CNN consumption. Before Haiti, I had always believed that the
primary function of ROE was to guide the behavior of the mythical Private
Smudlap in the field. I realize now that draft ROE also exert pressure on the
other end of the chain of command by forcing senior commanders and the
NCA to come to closure regarding their policy for use of force.
The two vignettes described in this essay reflect the tensions that typically
arise when crafting ROE for a highly visible, contentious operation. For
example, at what point does the push for thoroughness and certainty in the
rules end up undercutting an on-scene commander's flexibility to deal with
unexpected situations? Conversely, when does too much flexibility become
unwelcome ambiguity? 28
These tradeoffs are especially challenging in the murky world of peace
operations. ROE is both art and science. There can be no universal recipe, since
the rules always need to be tailored to a specific context; even so, the basic ROE
themes and ingredients transcend geopolitical atmospherics. The lessons
learned in Somalia served as a useful head start for those of us working up the
Haiti ROE. Similarly, the choices made for Haiti, both successful and
unsuccessful, have added to the accumulation of experience available for
future planners.
Notes
1. See Army Center for Law and Military Operations, Law and Military Operations in Haiti,
1994-95: Lessons Learned forjudge Advocates 29-38 (Oct. 3, 1995 draft) [hereinafter CLAMO
Study]. See also Office of the Staff Judge Advocate, 10th Mountain Division (Light Infantry),
Operation Uphold Democracy, Multinational Force Haiti After- Action Report, 29 July 1994 to
13 January 1995, at 5-6 (May 1995) [hereinafter 10th Mountain AAR].
2. Karl von Clausewitz's classic precept of war as a continuation of politics by other means
was coined in an era when nations treated war as a reasonable and even noble attribute of
sovereignty. In one sense, the elaborate attention which the United States gives to formulating
detailed rules of engagement for its military forces is the full flowering of Clausewitz's principle.
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Stephen Rose
At the same time, Clausewitz might view our preoccupation with the rule of law as excessive and
sympathize with the pungent conclusion of one recent commentator that "[a]ttempts to bring
our wonderful, comfortable, painstakingly humane laws and rules to bear on broken countries
drunk with blood and anarchy constitute the ass end of imperialism." Ralph Peters, After The
Revolution, PARAMETERS, Summer 1995, at 13.
3. For the record, it should be noted that all the intervention plans for Haiti called for a
multinational force. Eventually, more than 3,000 personnel from 32 other countries joined the
U.S. effort in Haiti. During the crucial period from April-September 1994, however, the military
planning and initial execution phase of the intervention were almost exclusively a U.S. project.
4. Message, U.S. Defense Attache Office, Port au Prince, Haiti, Subj: Weapons Commonly
Held by Civilians (161839Z Aug 94).
5. Fax Memorandum from Staff Judge Advocate, U.S. Atlantic Command, to Legal Advisor
for Chairman, Joint Chiefs of Staff (Sept. 6, 1994).
6. Fax Memorandum from Legal Advisor for Chairman, Joint Chiefs of Staff to Staff Judge
Advocate, U.S. Atlantic Command (Sept. 7, 1994).
7. Notes taken by Staff Judge Advocate, U.S. Atlantic Command, of telephone call from
Legal Advisor for Chairman, Joint Chiefs of Staff (Sept. 6, 1994).
8. The phrase "consistent with mission accomplishment and security of the force" is the
kind of equivocation that gives commanders a headache. Seen in the best light, such qualifiers
provide flexibility to deal with unforeseen contingencies. Seen in the worst light, they seem to be
weasel words cueing the commander that his judgment will be questioned if matters go
badly — e.g., if there had been substantial U.S. or Haitian casualties.
9. See CLAMO Study, supra note 1, at app. G for the text of the JTF 180 ROE card for
nonpermissive entry.
10. Id. at 11 (discussion of the agreement signed on Sept 19, 1994, by former President
Carter and Emile Jonaissant, the military-appointed president of Haiti) [Carter Agreement] .
11. See U.S. Atlantic Command, Operation Uphold Democracy: U.S. Forces in Haiti (May
1997) (monograph prepared by USACOM command historian as after-action report of Haiti
operations 1994-96), at 16-19.
12. See, e.g., Haitian Police Attack Crowd: U.S. Troops Watch, WASH. POST, Sept. 21, 1994, at
Al; Haitian Police Savagely Club Demonstrators; Man Beaten to Death at Port; Disgusted G.l.'s
Forced to Watch, HOUSTON CHRON., Sept. 21, 1994, at Al.
13. See, e.g., U.S. Troops Cleared for Deadly Force, HOUSTON CHRON., Sept 22, 1994, at Al;
The G.l.'s and the "Rules of Engagement," N.Y. TIMES, Sept. 22, 1994, at A13.
14. Headquarters, Joint Task Force 180, Tab F (draft ROE card for hostilities phase) and
Tab G (draft ROE card for civil-military operations) to Appendix 8 to Annex C to JTF 180
OPLAN Qune 13, 1994).
15. See CLAMO Study, supra note 1, at app. I.
16. Id. The entire ROE card was reprinted on 23 Sept. 1994 in THE WASH. TIMES at A20.
17. See 10th Mountain AAR, supra note 1, at 5.
18. The one exception to this rule was "mission-essential property" designated by the
commander, which could be protected with deadly force. The definition of mission-essential
property usually encompassed weapons, explosives, cryptological equipment, classified material,
etc.
19. See CLAMO Study, supra note 1, at app. I.
20. Fax Memorandum from Staff Judge Advocate, JTF 190 to Staff Judge Advocate,
USACOM, at 1 (Sept. 10, 1994).
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Crafting the Rules of Engagement for Haiti
21. Fax Memorandum from Commanding General, JTF 190 to Deputy Commander in
Chief, USACOM, at 3 (13 Sept. 1994).
22. Message, Commander-in-Chief, USACOM, Subj: ROE Request Serial One (170008Z
Sep 94).
23. Technically, the chain of command for approval of national-level ROE runs from a
geographic commander-in-chief, such as CINCUSACOM, directly to the Secretary of Defense.
In practice, the Chairman of the Joint Chiefs and his staff serve as a coordinating filter for
operational matters between the CINCs and the Secretary.
24. Message, Chairman, Joint Chiefs of Staff, Subj: Approval of ROE Request Serial One
(190450ZSep94).
25. ROE modifications were only one aspect of the larger debate over mission creep. In early
September, USACOM developed the following matrix of activities to summarize the level of
military involvement in various police functions, during the period before the legitimate
government of Haiti was scheduled to return:
Police Activity
Current Haitian
Police Involvement
U.S. Military Involvement
(Apolitical)
Traffic control
Domestic disputes
Minor crime (Shoplifting)
Major property crime
(larceny, burglary)
Personal violence crime
(homicide, aggravated
assault, arson, robbery)
Yes
Yes
Yes
Yes
Yes
Only to support military mission
No
No
Only when observed, non-deadly force
authorized to detain perpetrator
Only when observed, deadly force
authorized to detain perpetrator
(Civil Disorders)
Peaceful demonstrations
Yes
No
Violent demonstrations
Yes
Yes, if required for force protection or
mission accomplishment
Major civil disorder (riots,
looting)
Yes
Yes
(Special Situations)
Hostage rescue
Yes
Yes, if subject is on protected persons list
Detention
Yes
Yes
Forensic investigations
Yes
No
Prisons/Jails
Yes
No
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Stephen Rose
26. Message, Commander-in-Chief, USACOM, Subj: ROE Change Serial One (19082 1Z
Sep 94).
27 . In addition to the obvious training challenge, the physical act of printing and distributing
new ROE cards to every service member in the JTF during the first day in a foreign country was,
by itself, a feat requiring considerable energy and coordination. See CLAMO Study, supra note 1,
at 33.
28. ROE have multiple "users" — policy makers, military commanders, troops, and curious
onlookers such as the media. Ideally, the troops want clear, simple rules stacked like
commandments on a 3"x5" card. Commanders want a well-equipped ROE tool kit inside a
flexible framework. Operational lawyers want the ROE package to be a thorough, seamless
whole without loose ends or gaps — i.e., a product not requiring intricate glosses. The NCA
wants all of the above, plus rules that translate into useful sound bites for the inevitable media
grillings.
237
XII
Clipped Wings:
Effective and Legal No*fly Zone
Rules of Engagement
Michael N. Schmitt
Y7*
M REED OF THE STALEMATE that resulted from opposing bipolar
J-L superpowers wielding off-setting veto power in the United Nations
Security Council, the enforcement regime envisioned by the drafters of the UN
Charter in 1945 is slowly becoming a reality. 1 One of the tools that has been
fashioned to coercively compel desired norms of international behavior is the
no-fly zone. 2 Its use has challenged traditional notions of sovereignty, while
clarifying the operational code regarding those actions which are appropriate
responses to threats to the peace, breaches of the peace, or acts of aggression. 3
This article will explore how best to craft effective and legal rules of
engagement (ROE) for no-fly zones. Rules of engagement are the means
governments use to set forth the circumstances in which their military units
and personnel are authorized to use force, and, if so, how. 4 They represent the
intersection of policy, law, and operational concerns at the most fundamental
level of international relations. This is particularly true for no-fly zone ROE,
which govern operations intended to deny a sovereign State the use of its own
airspace.
Clipped Wings
Before exploring this relatively new enforcement mechanism, two brief
caveats are in order. First, it is not the purpose here to assess the legitimacy of
such zones under international law, either generally or as to specific operations.
Doing so would necessitate an in-depth analysis of the UN Charter and
customary international law that is well beyond the purview of this article.
Rather, the goal is to highlight factors which may contribute to safe, successful,
and legal enforcement, assuming, arguendo, that a zone is established lawfully.
Second, because the rules of engagement for no-fly zones implemented since
1991 remain classified, 5 the play of ROE in actual operations will be referred to
only rarely. Instead, the article articulates broad principles which apply to
no-fly zones wherever situated. It is first necessary, however, to set the stage by
describing no-fly zones themselves.
No'Fly Zones
A no-fly zone is a de facto aerial occupation of sovereign airspace in which,
absent consent of the entity authorizing the occupation, only aircraft of the
enforcement forces may fly. 6 Violators may be forced out of the zone or, in
extreme cases, shot down. No-fly zones should not be confused with aerial
operations designed to enforce economic sanctions against a target State. For
instance, following the Iraqi invasion of Kuwait in 1990, the United Nations
imposed an embargo on Iraq and Kuwait that eventually encompassed the
aerial regime. 7 Such an action only prohibits transit of aircraft carrying cargo
into or out of a designated area. In other words, it delineates boundaries which
certain aircraft may not cross; the restriction is linear. By contrast, a no fly-zone
restricts flight within a designated area. Its coverage is three dimensional.
Enforcement of a no-fly zone presupposes the possible use of force in
response to a violation. As the most severe sanction available in international
law, the circumstances under which it may be resorted to are highly
circumscribed. By a restrictive interpretation of the UN Charter, there are but
two.
The first is pursuant to a Chapter VII mandate. 8 Under Article 39 of that
chapter, the Security Council determines whether a "threat to the peace,
breach of the peace, or act of aggression" exists. 9 When it does, the Council
may "call upon the parties concerned to comply with such provisional measures
as it deems necessary or desirable." 10 It need not do so, however, and may
proceed directly to the imposition of "measures not involving the use of armed
force," such as interruption of aerial "means of communication." 11 In the event
the Security Council determines that non-forceful measures would be or have
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Michael N. Schmitt
proved inadequate, it may authorize the United Nations, regional
organizations, or member States to use force under Article 42 to restore or
maintain peace. Specifically cited in the article is "such action by air, sea, or
land forces as may be necessary to maintain or restore international peace and
security . . . [including] . . . demonstrations, blockades, and other operations by
air, sea, or land forces of Members of the United Nations." 12 It is Article 42 that
provides the specific legal basis for the use of force in the mission accomplishment
rules of engagement for no-fly zones. 13
Should the Security Council decide to authorize military action under
Chapter VII, it may do so in one of three ways. First, it may send in "Blue
Helmets," i.e., national forces under UN command and control (C2); certain
United Nations Protection Force (UNPROFOR) operations in the former
Yugoslavia, for example, were eventually conducted under Chapter VII. 14
Alternatively, it may defer to a regional organization to take the lead in
enforcement action. For instance, the NATO- controlled Implementation
Force (IFOR) replaced UNPROFOR following execution of the Dayton Peace
Agreement in 1995. 15 Finally, the Security Council may authorize member
States to take action individually or collectively to implement a particular
mandate. The most notable example of this approach was Operation DESERT
STORM. 16
The second basis for the use of force is self-defense in response to an armed
attack. This authorization is found in Article 51 of the Charter. 17 Albeit
visionary, the drafters of the Charter were realists. Understanding that Chapter
VII action might not be feasible or likely in all circumstances, they
acknowledged the inherent right of States to defend themselves, and other
States, until such time as the Security Council acted. Article 5 1 provides the
legal basis for self-defense rules of engagement in effect during no-fly
• 18
operations.
A liberal interpretation of the Charter would allow for a third use of force,
non-consensual intervention into another State for humanitarian purposes.
The legality of humanitarian intervention in international law is an unsettled
issue, for it flies in the face of traditional notions of sovereignty and territorial
integrity. 19 It is particularly controversial if conducted without the blessing of
the Security Council. 20 When authorized by the Council on the ground that
the internal actions in question constitute a threat to or breach of international
peace under Article 39, humanitarian intervention is somewhat less
contentious, although not universally accepted. 21 The no-fly zones over Iraq
have been justified in part on this basis. 22
241
Clipped Wings
Since 1991, there have been three no-fly zone operations. 23 The first two
were the products of the way the Gulf War ended. In the cease-fire talks at
Safwan, the Deputy Chief of Staff for Iraq's Ministry of Defense, on being
informed that aircraft would not be permitted to fly, queried whether the
prohibition extended to helicopters. He argued that due to the conditions of
the roads and bridges following the highly effective Coalition air campaign,
helicopter flights were necessary for transport of Iraqi officials. General
Norman Schwarzkopf agreed to permit the use of helicopters, although he
restricted them from flying in areas occupied by Coalition forces. 24
Soon after the cease-fire, Kurdish groups in the north and Shi'as in the south
revolted. 25 A brutal suppression of both uprisings followed, in which
helicopters were used extensively. The Kurds fled into the harsh
mountainous terrain along the Turkish-Iraqi border. Faced with mounting
international pressure to come to their assistance, in part the product of a
perception that the Kurds and Shi'as had acted in reasonable expectation of
Coalition support, 27 the Security Council adopted Resolution 688. It labeled
the suppression of the Kurds a threat to "international peace and security in the
region," insisted that Iraq allow humanitarian relief into the area, and
demanded that Iraq cooperate with the Secretary-General to realize these
goals. 28
Operation PROVIDE COMFORT resulted, and in April 1991 relief flights
began dropping supplies to the Kurds as forces of a 13 -country coalition
entered northern Iraq and established a security zone from which the Iraqis
were directed to withdraw. 29 In order to provide relief to Kurdish groups under
attack and ensure the security of troops on the ground, a no-fly zone was
established by the Coalition within Iraq north of the 36th parallel. 30 The 36th
parallel was an easily understood demarcation that incorporated much of the
territory in which the Kurds lived. 31 Iraqi forces were notified of the zone by
demarche. Thereafter, any Iraqi aircraft, whether fixed-wing or helicopter,
entering the area without prior authorization risked being shot down.
Aircraft of Turkey, France, the United Kingdom, and the United States
began flying from Incirlik Air Base in Turkey to enforce the no-fly zone. In
August 1996, fighting between the two largest Kurdish groups broke out, with
the Iraqi military overtly supporting one faction. 32 Since Operation PROVIDE
COMFORT had initially been designed in part to protect the Kurds from the
Iraqis, the specter of Kurds turning to the Iraqis for assistance caused many to
rethink the viability of the operation. Soon thereafter, the humanitarian
element of the mission was terminated, the French pulled out, and PROVIDE
COMFORT was renamed NORTHERN WATCH. 33
242
Michael N. Schmitt
No comparable humanitarian relief effort was mounted in the south. The
plight of the Shi'as was less one of starvation or exposure to the elements than
it was of brutal suppression. Iraqi helicopter operations against the Shi'as
continued until August 1992, when Operation SOUTHERN WATCH was
activated to enforce a no-fly zone south of the 32N parallel. 34 As in PROVIDE
COMFORT, the operation was based on Security Council Resolution 688. 35 In
response to Iraqi military involvement in the inter-Kurd hostilities, the no-fly
zone was extended northward to the 33rd parallel in September 1996. 36
Operation SOUTHERN WATCH is conducted by aircraft of the United States,
United Kingdom and France operating from bases in Saudi Arabia, Kuwait and
the United Arab Emirates.
Interestingly, Resolution 688 neither mentioned Chapter VII nor
specifically authorized establishment of no-fly zones. On its face, it authorized
no affirmative action. Further, neither NORTHERN nor SOUTHERN WATCH
is a classic Chapter VII operation as envisioned in the Charter, i.e., a response
to aggression by one State against another. Instead, they more closely resemble
humanitarian intervention mounted by multinational forces in response to a
threat to international stability.
Despite the difficulty of fitting either operation into a neatly framed
Charter-based scheme, legal justification for them has been based on Security
Council Resolutions 678, 687, and 688. 37 Resolution 678 was the initial grant
of authority to use force against Iraq under Chapter VII. 38 Subsequently,
Resolution 687 set forth the terms of the cease-fire, specifically reaffirming 678
in the process. 39 Thus, so the argument goes, the 678 use of force authorization
remains intact to effectuate even subsequent resolutions, including 688. This
being so, and because 678 authorized member States to act on their own, they
were entitled to mount operations to ensure compliance with 688. The results
were Operations PROVIDE COMFORT and SOUTHERN WATCH. With the
demise of the humanitarian component of PROVIDE COMFORT, NORTHERN
WATCH is a bit more difficult to plug directly into this equation because of the
absence of direct linkage to the 688 circumstances. Nevertheless, the no-fly
zone continues as a de facto limit on Saddam Hussein's options against the
Kurds. Moreover, his involvement in Kurdish internecine conflict, repeated
interference with UN weapons inspectors, alleged involvement in a plot to
assassinate George Bush, etc., arguably justify keeping the pressure on him in
order to limit the extent of his defiance. Resolution 688, considered in light of
the cease-fire resolutions and Iraqi acceptance of their terms, provides a
colorable legal basis for doing so in the form of no-fly zones.
243
Clipped Wings
Much cleaner from a legal point of view is the no-fly zone that was
established over Bosnia-Herzegovina. At the London Conference in
September 1992, it was agreed that as a confidence-building measure, and to
facilitate the delivery of humanitarian assistance, military flights over
Bosnia-Herzegovina would be banned. 40 Nevertheless, such flights continued.
In response, the Security Council adopted Resolution 781 prohibiting them
and authorizing UNPROFOR to track compliance through placement of
observers at military airfields. 41 In support of the effort, NATO Airborne Early
Warning and Control System (AW ACS) aircraft began monitoring the zone
and passing data it collected to UN authorities.
Violations by the Bosnian Serbs continued. In March 1993 the Security
Council upped the stakes with Resolution 816. It authorized member States:
4. • . .(A)cting nationally or through regional organizations or arrangements, to
take, under the authority of the Security Council and subject to close
coordination with the Secretary-General and UNPROFOR, all necessary
measures in the airspace of the Republic of Bosnia and Herzegovina, in the event
of further violations to ensure compliance with the ban on flights . . . and
proportionate to the specific circumstances and the nature of the flights.
It also requested:
5 . (T) he Member States concerned, the Secretary-General and UNPROFOR to
coordinate closely on the measures they are taking to implement paragraph 4
above, including the rules of engagement . . . . 42
The resolution specifically cited Chapter VII of the Charter as the basis for
authorization.
Paragraph 4 is in accordance with Chapter VIII of the UN Charter, which
allows the Security Council to seek the assistance of regional organizations in
enforcement actions. 43 The response came from NATO the following month in
the form of Operation DENY FLIGHT. Starting with fifty fighter and
reconnaissance aircraft, over time the operation grew to more than 200
operating from bases in Italy and aircraft carriers in the Adriatic. 44 DENY
FLIGHT continued until December 1995, when responsibility for all
operations — ground, air, and sea — was transferred to NATO in accordance
with the Dayton Peace Agreement. 45 Thereafter, control of airspace became
the responsibility of the IFOR, 46 a NATO-led force tasked with executing
JOINT ENDEAVOR, the peace implementation operation. 47 In December
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Michael N. Schmitt
1996, IFOR transitioned into the Stabilization Force (SFOR). SFOR continues
to conduct aerial operations from bases in Italy. 48
Thus, of the three no-fly operations, only DENY FLIGHT was explicitly
authorized in a Security Council resolution. However, all three look to the UN
Charter and the authority it vests in the Council for legitimacy. Since no-fly
zones violate traditional notions of near absolute sovereignty over one's own
territory, a zone not at least arguably grounded in the Charter regime would be
unlikely to survive international scrutiny. 49 That being so, it is essential to
query exactly what the mandate — explicit or implicit — is whenever
considering no-fly zones. In the case of DENY FLIGHT, the resolutions
authorizing the zone made it quite clear that the prohibitions were limited to
military flights, and specifically those in the airspace over the Republic of
Bosnia and Herzegovina. Any other use of force (at least vis-a-vis the no-fly
zones) not falling within these narrow boundaries would, therefore, be
questionable under international law. The sole exception is acts in self-defense
pursuant to Article 5 1 of the Charter. In the cases of the zones over Iraq, far
greater interpretive acumen is required, for the mandate is implicit.
Before turning to the rules of engagement, it is important to emphasize that
the use of force in no-fly zones is far from an academic question. Violations of
the zones have occurred periodically, often drawing a forceful response. In
December 1992, an Iraqi MiG-25 fighter south of the 32nd parallel was
downed by a SOUTHERN WATCH F-16 Fighting Falcon. 50 The next month,
another F-16 shot down an Iraqi MiG-23 fighter which had crossed the 36th
parallel into northern Iraq. 51 Less than a year later, NATO jets downed four
Galebs which violated the no-fly zone over Bosnia-Herzegovina. 52
Enforcement aircraft in all of the no-fly operations have taken ground fire from
anti-aircraft artillery (AAA) or surface-to-air missiles (SAM), in many cases
necessitating an attack in self-defense on the AAA or missile site in question.
More seriously, during DENY FLIGHT, a French Mirage crew was taken
prisoner after ejecting and an American F-16 was downed by a SAM. 53 The
gravity of no-fly zone enforcement is perhaps best illustrated by the horribly
tragic incident over northern Iraq on 14 April 1994, in which two U.S. F-15
Eagles mistakenly shot down a pair of U.S. Army Black Hawk helicopters.
Twenty-six U.S., UK, French, Turkish, and Kurdish personnel on board
perished. 54
The use of force in each of these incidents was governed by the rules of
engagement then in effect. In the aftermath of the Black Hawk shoot-downs,
the President of the Aircraft Accident Investigation Board concluded that, in
.his opinion, Operation PROVIDE COMFORT "personnel did not receive
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consistent, comprehensive training to ensure they had a thorough
understanding of the USEUCOM-directed ROE. As a result, some aircrews'
understanding of how the approved ROE should be applied became
over-simplified." 55 ROE problems were not the sole cause of the tragedy, but
they certainly contributed to it. As should be apparent, carefully drafted rules
of engagement are essential to ensure compliance with national policy,
international law, and sound and safe tactical practices.
Rules of Engagement
Underlying Bases of ROE. Rules of engagement are directives from national
authorities which "delineate the circumstances and limitations under which
[forces of a country] will initiate and/or continue combat engagement with
other forces encountered." 56 Properly designed, they have three underlying
bases that operate in tandem and synergistically — policy, law, and operational
concerns.
First, and most fundamentally, ROE are the means by which the National
Command Authorities (NCA) 57 (or comparable authority in other countries)
express their intent as to how force will and will not be used to achieve policy
objectives. They are the realization of Clausewitz's classic maxim that war is "a
true political instrument, a continuation of political intercourse, carried on by
other means." 58 Since the NCA cannot be in the cockpit of aircraft monitoring
a no-fly zone, ROE allow them to express their intent regarding the use of force
to those who are.
The rules of engagement must, therefore, be carefully written so as to
preclude actions that might run counter to national policy. The process
requires sensitivity to the distinction between purpose and means. A no-fly zone
is nothing more than one means to effectuate a national (or international)
purpose, such as mounting a humanitarian relief effort or keeping feuding
parties apart. 59 At times, this subtle, yet critical distinction is lost in the rush to
design an impermeable no-fly zone. However, the proper measure for success is
not the extent to which violations occur, but rather the congruency of the
operation's execution with its underlying political purpose. Those who view it
as existing in a political vacuum risk failure by their inability to factor
Clausewitzian principles into planning. The Black Hawk shoot-down is apt
evidence of the need to be able to live with the political and policy
consequences of one's ROE. °
The proper focus is on how rules of engagement can shape and bound the
use of force to comport with the underlying purpose of the mandate. For
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instance, if the purpose of a vaguely drafted no-fly zone Security Council
resolution is simply to ensure safe delivery of relief supplies or to keep ground
attack aircraft from giving in to the temptation to strike enemy forces held in
place by a cease-fire, then it is not necessary in the ROE to permit unarmed
civil aircraft to be engaged. A civil downing would evoke an international
outcry certain to endanger continuance of the operation. By contrast, if the
policy goal is to keep intense pressure on a rogue State by denying it the use of
its own airspace, then perhaps a comprehensive ban is merited.
Much as rules of engagement are intended to help ensure that use of military
force furthers national policy, so too do they ensure that use is lawful. 61 This is
the second structural element of ROE — international law. Indeed, in the
Department of Defense Dictionary of Defense and Associated Terms, the
entries "rules of engagement" and "law of war" are cross-referenced, the only
cross-reference in either definition. 62
The determinative effect of law is reflective of both the jus ad helium, i.e.,
that law which governs when States may resort to the use of force in their
relations, and the jus in hello , that law which limits how force may be used once
resorted to. As to the former, it has been noted that a no-fly zone is usually a
non-consensual aerial occupation of another sovereign State's airspace by
force. Absent consent of the nation in whose airspace the zone is established,
ongoing hostilities in an international armed conflict, or some form of Security
Council authorization, a no-fly zone would constitute a breach of the enforcing
State's obligation to respect the sovereignty of other States. It would likely be
characterized by the international community as a breach of the prohibition on
the use of force found in Article 2 (4) of the Charter. 63 Moreover, even if an
implicit or explicit mandate existed, enforcement exceeding the scope of
authorization would be unlawful. Thus, intentionally shooting down a civil
aircraft in a no-fly zone for military aircraft or enforcing the zone beyond its
geographical boundaries would violate international law.
It is also possible that the actual execution of a lawful decision to resort to
force to enforce a no-fly zone could violate jus in hello prescriptive norms,
especially proportionality or necessity. The fact that these two principles are
applied in a no-fly zone does not affect their substantive content. An act is
militarily necessary or proportionate in a particular context or it is not.
Military necessity is the principle of the law of armed conflict that prohibits
destructive or harmful acts that are unnecessary to secure a military
advantage. 64 Before an action can be taken, the actor must be able to articulate
the direct military advantage that will ensue therefrom. In other words,
destruction may not be wanton or of marginal military value, and military
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motivations must underlie it. 65 Issues of military necessity are rare in no-fly
zone enforcement because specific approval is usually required to strike targets
other than in self-defense. When authorization is provided, it tends towards
selection of traditional military targets directly related to zone enforcement. 66
Whereas military necessity is a raw assessment of overall military advantage,
proportionality expands analysis by balancing the advantage gained against the
incidental injury to civilians or collateral damage to civilian objects that
results. 67 It prohibits injury or damage disproportionate to the military
advantage secured by the action. To illustrate, if a mobile SAM site is operating
from the middle of a village, but poses minimal risk to the operation, or there
are clear alternatives to flying through its weapons engagement zone (WEZ), 68
and attacking it is certain to result in significant casualties among the villagers,
it should generally not be hit. The attack would be disproportionate. Similarly,
if a no-fly zone intended to foreclose ground attacks is limited to forbidding the
presence of military aircraft, it would be disproportionate to destroy a military
aircraft with no offensive capability transporting civilians across the zone.
Military (actually political advantage sought by the mandate) advantage is
outweighed by the incidental injury. The proper remedy in this case is to clarify
the requirements; at minimum, parties should be warned that further
violations will be dealt with by force. 69
Both these principles must be factored in as the mandate is translated into
rules of engagement. The only exception to their applicability occurs when the
mandate itself authorizes acts which would otherwise be unnecessary or
disproportionate. After all, the Security Council resolution on which the
authority for the zone is based has actual legal valence; the ROE merely
interpret the mandate. As an example, the Security Council could authorize an
attack on civil aircraft of no military value to the target State or threat to
enforcement aircraft (necessity), even if civilian casualties (proportionality)
would ensue, simply by implicitly or explicitly including them in its mandate.
To justify this departure from the traditional law of armed conflict, it must
be understood that Chapter VII permits what would otherwise be in violation
of the law if performed by States acting without Council sanction. 70 Article 39
allows the Security Council to conduct a balancing test between whatever
enforcement actions it deems necessary and the threat to which they respond.
Moreover, the Charter, a treaty based in the original consent of the Parties, is
generally controlling over existing customary law; 71 as to treaty law, Article 103
provides for the supremacy of Charter obligations. 72
It can be argued that in certain extreme cases, such as direct enforcement
against civilian objects or personnel, the prohibition on targeting them is more
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than customary international law; it has become jus cogens, a peremptory norm
of international law which admits of no deviation. 73 However, the very
existence of jus cogens norms is controversial. 74 Any action pursuant to a
Chapter VII determination by the Security Council that the measure will
contribute to the maintenance of international peace and security would be
unlikely to fall as violative of jus cogens.
Theory aside, in cases of even questionable uses of force, law quickly fades
before policy. A policy decision will have to be made regarding whether or not
traditional jus in hello prescriptive norms will yield to a weightier policy interest
effectuated via Chapter VII. The decision may well turn on a balancing of
potential harm to enforcement against likely international condemnation. For
obvious reasons, an act violating the traditional jus in hello normative paradigm
should only be approved in the most extreme circumstances.
From a technical point of view, it must be understood that both necessity
and proportionality are principles of the law of armed conflict, a body of law
which only applies in international, as distinct from non-international, armed
conflict. 75 No-fly zones may or may not take place in a state of international
armed conflict. Fortunately, the difficulty of drawing the complicated legal
distinction between international and non-international armed conflict is
eased by the policy decision of many States to have their forces apply the law of
armed conflict irrespective of the characterization of the conflict absent
instructions otherwise. 76 Therefore, as a matter of policy, if not law, execution
of no-fly zone ROE must generally comport with these principles.
The centrality of legal norms in ROE should by now be apparent. Although
ROE can never address every possible legal issue that might arise (lest they be so
complex as to be rendered completely incomprehensible) , effective ROE will
cover those most likely to arise in the context of a particular operation, as well
as those most difficult to analyze in the split-second decision-making that
characterizes aerial operations. It is also important to understand that although
the legal aspects of ROE tend to be seen as restrictive, law also allows ROE to
act as force enahlers. 11 This is most true in the case of self-defense. Recognition
that the use of force is always an act of national policy causes some flyers to
hesitate to use force, even when reasonable to defend themselves, their troops
or other appropriate assets. 78 An understanding of the international law basis
for the ROE can help counter this dangerous propensity.
The third component of effective rules of engagement — complementing
policy and law — is operational soundness. ROE may comport with policy and
fall within the limits of the law, but if they do not make sense from the
perspective of the pilot in the cockpit, they are unacceptable. As an example,
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consider a no-fly zone in which there have been multiple incidents of intruder
aircraft launching missiles at enforcement aircraft. A rule of engagement that
would require a violator to be visually identified (VID) by enforcing aircraft, an
act only possible at a distance well within the violator's weapons engagement
zone (WEZ), would be foolish at best, possibly suicidal. Combat capable
violators must be engaged beyond visual range (BVR) if the zone is to be
enforced safely. Of course, fairly complex identification ROE (or guidance on
the rules issued by the commander) will need to be developed to guard against
mistaken engagements.
This example illustrates the point made earlier that the three bases of ROE
operate in tandem and synergistically. The principle of distinction in
international law 79 requires a degree of pre-engagement certainty that helps
prevent mistaken downings likely to undermine policy objectives. At the same
time, and as will be discussed more fully below, the law of self-defense allows
enforcement aircraft to take whatever actions are tactically prudent to defend
themselves and others should a situation not specifically accounted for in the
ROE arise. The default right of self-defense permits ROE driven by policy and
law to remain operationally credible to those who might contest the zone.
Credibility gives rise to the deterrent effect the declaration of the no-fly zone
was intended to achieve in the first place. 80
A healthy focus on the bases of ROE will also act to identify defective rules of
engagement. 81 Only rules responsive to all three are acceptable. Stated
inversely, any rule of engagement that hinders achievement of policy aims, is
unlawful or is likely to result in unlawful actions, or is operationally unsound
must be rejected. Understandably, then, ROE are best drafted by a team
consisting of a judge advocate and an operator, 82 and must be reviewed at an
appropriate policy level.
Mission Accomplishment and Self-Defense Rules. Rules of engagement come
in two varieties — mission accomplishment and self-defense. Although it is
critically important that this distinction be recognized, the most common
mistake made in drafting ROE is the blurring of the two. When this occurs, the
likelihood of inadvertently frustrating the mission or placing those who are
tasked with its execution at risk tends to be high.
Mission accomplishment rules are the easiest to understand and execute for
the operator but present the greatest challenge to those responsible for drafting
ROE. As the tether to the specific policy objectives the no-fly zone is intended
to achieve, they help ensure that tactics and procedures used by enforcement
aircraft are lawful and operationally sound. Mission accomplishment rules also
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allow the NCA the opportunity to provide direction on important policy
questions regarding the use of force not explicitly addressed in the initial
political mandate.
It is here that the actual rules for enforcing the zone are set forth. Unlike
self-defense rules, mission accomplishment rules are operation specific. They
do not apply outside the context of a particular no-fly zone enforcement effort.
Reduced to basics, mission accomplishment ROE set forth who may do what to
whom, and how, when, and where that action may occur.
Mission accomplishment rules are difficult to develop because of the need to
ensure consistency with each of the three bases of ROE. For the sake of
illustration, consider a seemingly straightforward Security Council mandate
which states that military aircraft are not to fly in a set zone. What does the
term "military aircraft" mean? Is it limited to armed aircraft? Does it include
military helicopters? Military transport aircraft? Whose military aircraft? What
of civil aircraft contracted to carry military supplies and personnel? Are civil
aircraft conducting reconnaissance for military purposes considered to be
"military aircraft"? What about military aircraft performing civilian functions,
such as the transport of officials involved in cease-fire negotiations? Does it
matter if military aircraft are transporting civilians because the civil air
transport system in the country has collapsed? 83 Are military aircraft delivering
relief supplies included in the ban? Are military medical aircraft exempt?
The problem is that the political mandate directing enforcement of the zone
is likely to be very broadly drafted because of the difficulty of Security Council
agreement on minutiae, however important the details may be. The dynamics
of consensus-building, particularly in a multi-national environment, drive
mandates towards generalities. In some cases, even the no-fly mandate itself
must be inferred, as in the case of the Iraqi zones. Mission accomplishment
ROE fill in the gaps for those in the cockpit who cannot be expected to resolve
policy and legal issues as they receive a radar return from an incoming violator.
Therein lies the dilemma. ROE drafters are expected to put policy and legal
flesh on a skeleton that was not the product of their own labors and which may
be understood differently by the various States involved. In extreme cases, this
may result in differing, even conflicting, mission accomplishment ROE during a
combined operation consisting of multiple national contingents. 84
Self-defense rules of engagement are much easier to draft, but pose far
greater interpretive problems. While ROE governing the use of force to
accomplish the mission must be precise enough to safeguard against exceeding
the policy mandate, falling short of it, or violating international law,
self-defense rules are intentionally drafted broadly in order to pass as much
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discretion to the operator as possible. The burden of decision shifts from the
drafter to the cockpit; the desire is to avoid any possibility of a crew hesitating
to defend itself because the ROE are not directly on point. Therefore, whereas
mission accomplishment ROE should anticipate scenarios, self-defense ROE
should clarify standards.
For very practical reasons, self-defense ROE are at the heart of no-fly zone
enforcement. 85 Such zones are most likely in the netherworld lying between
armed conflict and peace, where it is often unclear who is and who is not
friendly. Moreover, they are non-consensual in fact, if not by law. Even when
technically consensual, there will be powerful incentives to violate the no-fly
zone. If not, there would be little need for enforcement with combat aircraft.
What this means is that crews enforcing such zones regularly fly into a highly
dangerous environment armed with only a contingent right to use force, i.e.,
contingent on whether the zone has been violated or whether there is a need to
act in self-defense. Effective ROE will allow them to exercise the latter right,
which is the foundation of a State's willingness to engage in such operations, to
the fullest extent permissible under international law.
There are four types of self-defense, each deriving its legal basis from Article
51 of the Charter. 86 On the macro level is national self-defense, the act of
defending one's country and national interests. Generally, national
self-defense is accomplished by declaring forces "hostile," i.e., subject to attack
sans plus. The mere existence of hostile forces renders them targets. National
self-defense plays little role in no-fly self-defense ROE.
The second form of self-defense is individual self-defense — the act of
defending oneself. Complementing individual self-defense is the third type,
unit self-defense, an action taken to defend other personnel or units of one's
own military forces. Finally, political authorities may extend a defensive
umbrella to other States or their military personnel. This collective self-defense
must be approved at the highest level — in the United States, the NCA. 87
Collective self-defense is an essential element in a combined no-fly zone
operation during which aircraft of a particular nation typically perform set
functions, such as reconnaissance, relying on aircraft from another nation for
protection. Article 5 1 legitimizes this cooperative approach.
It is well established under international law that an act in self-defense must
be characterized by two elements — necessity and proportionality. 88 Beyond
that, each State defines the criteria under which its forces may exercise
self-defense. The United States takes a relatively liberal view of the right. As
used in the self-defense rules of engagement, 89 necessity and proportionality differ
from the jus in hello principles of military necessity and proportionality discussed
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earlier. 90 Proportionality and necessity in the context of self-defense ROE are about
when force may be resorted to. By contrast, in the jus in hello context, military
necessity and proportionality are basic principles regarding how force may be used;
they apply to both mission accomplishment and self-defense ROE.
When used as an element of self-defense, necessity is defined as a situation
in which a "hostile act occurs or a force or terrorist unit exhibits hostile
intent." 91 "Hostile act" and "hostile intent" are ROE terms of art. The cleanest
basis for a use of force in self-defense is in response to a hostile act. It is
described as an:
[A]ttack or other use of force by a foreign force or terrorist unit [organization or
individual] against the United States, US forces, and in certain circumstances,
US citizens, their property, US commercial assets, and other designated non-US
forces, foreign nationals and their property. It is also force used directly to
preclude or impede the mission and/or duties of US forces, including the
recovery of US personnel and vital US Government property. When a hostile act
is in progress, the right exists to use proportional force, including armed force, in
self-defense by all necessary means available to deter or neutralize the potential
attacker or, if necessary, to destroy the threat. 92
In the context of a no-fly zone, hostile act means that someone is shooting at
you or at someone else involved in the enforcement operation. As a matter of
law and policy, the right to defend oneself in the face of a hostile act is
universally accepted.
It is with the concept of hostile intent that most difficulties surface. For U.S.
forces, hostile intent is:
[T]he threat of imminent use of force by a foreign force or terrorist unit, or
organization against the United States and US national interests, US forces, and in
certain circumstances, US citizens, their property, US commercial assets, or other
designated non-US forces, foreign nationals and their property. When hostile
intent is present, the right exists to use proportional force, including armed force,
in self-defense by all necessary means available to deter or neutralize the potential
attacker or, if necessary, to destroy the threat. A determination that hostile intent
exists and requires the use of proportional force in self-defense must be based on
convincing evidence that an attack is imminent. 93
Simplified, hostile intent means someone is about to shoot at you or someone
else involved in the enforcement operation. Unfortunately, the policy and legal
underpinnings of ROE may seem to conflict with their operational basis when
seeking to understand self-defense ROE. Whereas the judge advocate and
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policy maker want to insure no action is taken until the requisite threshold for
self-defense under Article 51 has been reached, the operator is concerned
about one thing — being shot down. These two very different cognitive
paradigms can lead to confusion over the meaning of self-defense ROE. The
most common misunderstanding turns on the distinction between "threaten"
and "threat." The mere fact that something is a threat to an enforcement
aircraft does not mean it has demonstrated hostile intent. It must first threaten
the aircraft, i.e., it must engage in an act that is hostile or evidence an intent to
commit a hostile action. The best way to think of the distinction is as the
difference between a verb and a noun; because the standard is one of intent,
the actor, even though posing a threat (noun), must act (verb) to suggest his
intent in some way.
To illustrate, consider a combat aircraft flying at high speed and altitude
towards a no-fly zone line. Armed with long-range air-to-air missiles, this
"high-fast flyer" is a potent threat to enforcement aircraft, particularly
non-fighters such as tankers. The longer enforcement aircraft wait to engage it,
the greater the threat it poses and the more difficult it will be to counter if it
crosses the line. Yet, it has done nothing that suggests hostile intent', it has
threatened no one. Instead, the high-fast flyer has merely flown within its own
sovereign airspace, as it is clearly entitled to do under international law. Unless
it commits an act that in some way reveals malevolent intent, it may not be
engaged until it has crossed the line, a point at which mission accomplishment
ROE intercede to govern the response. This is a difficult distinction to make for
a crew member who must fly in the face of a threat which has not yet
threatened.
Even with definitional clarity, hostile intent is difficult to ascertain in
practice because it is both subjective and contextual. It is subjective in the
sense that unless there is reliable intelligence information regarding the intent
of the opposing forces, it is exceedingly difficult to determine intent until a
hostile act actually occurs. For instance, if a target State fighter approaching
the no-fly zone illuminates an enforcement aircraft with its fire control radar
("locks on"), it may or may not be intending to take a missile shot. Perhaps it
only aims to frazzle enforcement aircrews, demonstrate resolve against the
operation, or desensitize enforcement aircraft in order to catch them off-guard
when it really does intend to shoot. 95 Or perhaps it is about to launch a deadly
air-to-air missile.
Each determination is also contextual. What is a demonstration of hostile
intent in certain scenarios may not be in others. Being locked-on in the Gulf of
Sidra by a Libyan fighter, for example, is far more likely to constitute hostile
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intent than being locked-on in the Hudson Bay by Canadian aircraft. When
assessing context, the following factors are often telling: 96
• The current political context. What is the level of tension between the
enforcing States and the State over whose territory the zone has been
established? Have there been any recent statements or acts indicating the
possibility of an attempt to test the resolve of the no-fly forces? Is there any
reason to believe now would be an opportune time to do so? For instance, have
there been any recent indications of cracks in the coalition enforcing the zone
or slippage in international support for it? 97
• Prior practice. Have there been prior violations and/or uses of force against
enforcement aircraft? In what circumstances? By ground or airborne assets?
What tactics were employed, and do they resemble those the aircrew is
observing now?
• Indications and warning intelligence. Have there been any deployments of
threat systems that might suggest a greater capability or willingness to engage
enforcement aircraft? For example, have additional or more capable
surface-to-air missile systems or aircraft come into the area? Have SAMs been
moved to as yet undetermined locations, thereby raising the possibility of a
"SAMbush"? 98 Has there been an increase in air-to-air training? Has there been
an unexplained stand-down (period of little or no flying) that might suggest
preparation for an engagement? 99 Have there been unusual movements of
ground forces that indicate a possible military action likely to be accompanied
by air support?
• Capabilities. Does the aircraft or missile system have the capability to
engage at this distance or altitude? With what likelihood of success? How
much of a threat is the missile (or other weapon) if the possible hostile intent
matures into a hostile attack? In other words, are the enforcement aircraft's
defensive systems, such as electronic-counter measures (ECM) or chaff and
flare, 100 effective against this particular threat or can the enforcement aircraft
easily maneuver to "defeat" the threat? 101
The fact that the determination of hostile intent is subjective and
contextual renders it unwise to include a laundry list of acts which amount to
hostile intent in the ROE. 102 If an act contained on the list does not rise to the
level of hostile intent given the circumstances in which it is occurring, and the
aircrew nevertheless reacts forcibly, the response may be characterized as a
violation of the prohibition on the use of force in Article 2(4). After all, no act
justifying a response under Article 51 has occurred. The action will, at very
best, embarrass the enforcement State. More likely, it will result in some form
of international condemnation.
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On the other hand, a laundry list may cause the aircrew to hesitate to act in
valid self-defense should they be faced with a situation not previously
contemplated. It is simply impossible to reliably and comprehensibly predict
those actions that are indicative of hostile intent. That being so, ROE drafters
should not attempt to do so. The far better course is to rely on the pre-mission
self-defense training that aircrews receive to enable them to evaluate events as
they unfold.
This does not mean that rules of engagement should not include lists of acts
that might suggest hostile intent. Most do exactly that. For instance, in the
no-fly environment, being locked on by a fire control radar or having a
potential opponent maneuver into a position from which he can best engage
enforcement aircraft are classic examples of potentially hostile intent. The
same is true with regard to ground-based SAMs that lock on to enforcement
aircraft. However, whenever such lists are included in ROE, it is critically
important to stress that they are only possible indicators of hostile intent,
neither exclusive nor determinative in nature. 103
Hostile intent is not only difficult to define, it is difficult to place temporally.
Recall that the language of Article 51 speaks in terms of an "armed attack."
Yet, surely there is no requirement to take the first hit before the right to
self-defense arises. 104 Given today's effective weaponry, any such assertion
would be absurd, for taking the first hit in aerial combat is usually fatal. Most
commentators and practitioners agree that there is a right to anticipatory
self-defense, i.e., the right to act in self-defense before the other side attacks.
The question that confounds international law is how anticipatory may the
need for self-defense be? 105
The most widely accepted standard is that articulated by Secretary of State
Daniel Webster regarding the Caroline incident in the nineteenth century. For
Webster, self-defense was to "be confined to cases in which the necessity of
that self-defense is instant, overwhelming, and leaving no choice of means, and no
moment for deliberation" 106 This standard was subsequently referred to
approvingly during the Nuremberg trials. 107 Today it is expressed as the
requirement of imminency.
But what is it that must be imminent? Imminency cannot possibly be
measured in terms of proximity to the actual attack, for such a standard is not
responsive to the rationale for the right to self-defense, specifically the right not
to have to sit idly by while a fatal blow is delivered. The proper measure of
imminency is that point in time when the threatened act can be viably deterred
or defeated. In other words, one may not act in self-defense until the moment
when failing to do so may be too late. This fine distinction is of critical
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importance in aerial operations because of the finality and speed of the hostile
act that follows a demonstration of hostile intent. 108
Self-defense not only has a start point, it has an end point as well. Recall the
requirement that self-defense be a response to a threatening or hostile act.
When that act ends, i.e., when there is no longer an ongoing hostile act or
demonstration of hostile intent to respond to, the enforcement aircraft may not
persist in engaging in self-defense. This is colloquially known as the "once it's
over, it's over" rule. 109 It is replete with practical implications for no-fly zone
operations. Most significantly, if an aircraft is acting in self-defense against
another aircraft, and that aircraft clearly and unambiguously breaks off the
engagement, then the attacked aircraft has no right under self-defense to
continue the fight. 110 It too must break off (absent a mission accomplishment
rule to the contrary). This may seem contrary to good sense, 111 which would
suggest that the aircraft which committed the hostile act remains a threat by
definition. So it, in fact, does; however, recall that self-defense only grants a
legal right to respond to threatening acts, not mere threats (no matter how
potent) .
What if the action of the enforcement aircraft defeats the threat before it is
engaged? For example, assume an enforcement aircraft is illuminated by the
fire control radar of a SAM site. This would in many cases constitute a
demonstration of hostile intent and permit an immediate attack on the site.
However, the threatened aircraft's most prudent course of action would usually
be to maneuver to evade the missile if fired and depart the SAM's weapons
engagement zone. This is so because a quick, immediate response to a SAM site
with whatever ordnance happens to be available is a dangerous proposition;
SAMs are specifically designed to shoot down aircraft. The alternative, and
often better, approach tends to be a measured sequential attack on the site by
aircraft carrying anti-radiation missiles, followed by those employing either
cluster bomb units or "iron" bombs. 112 May the aircraft withdraw and take time
to coordinate such an attack?
No it may not, at least not pursuant to the self-defense rules of engagement.
Once there are no aircraft within the SAM's weapons engagement zone (WEZ) ,
there is no present threatening act to defend against. This poses a Catch-22
dilemma for no-fly-zone enforcement. An aircraft that is illuminated is at
immediate risk and generally should maneuver out of the WEZ as quickly as
possible. However, once it does, international law intervenes to deny the
aircraft or its fellow aircraft the right to subsequently attack the site in
self-defense. The quandary is obvious. The State against whom the no-fly zone
is applied could easily frustrate enforcement by simply illuminating
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enforcement aircraft, thereby forcing enforcement aircraft into the Hobson's
choice of breaking off the overall mission as planned or attacking under less
than optimal circumstances. 113
A remedy is to be found in mission accomplishment ROE. By definition, the
original mandate called for the enforcement of a no-fly zone, but it is unlikely to
include many specific restrictions on this tasking. The zone cannot be enforced
effectively if ground-based defenses are permitted to force enforcement aircraft
to alter planned missions simply by turning on their radar systems. 114 Therefore,
the authority to enforce the zone necessarily implies corresponding authority to
take whatever reasonable steps are called for to do so safely; this authority
would logically include the right to destroy SAM sites that have already
demonstrated hostile intentions and are, thereby, frustrating overall
accomplishment of the mandate. The proper method for articulating the right
is through mission-accomplishment ROE, not an overly expansive view of the
legal right of self-defense.
Reasonableness is the key. One might argue that it would be even more
prudent to take out all SAM sites with an ability to reach enforcement aircraft,
regardless of whether or not they had committed a hostile act or demonstrated
hostile intent. Absent specific authority in the mandate, doing so as part of the
no-fly operation without any incidents of interference with operations would
likely be judged to be beyond either the Charter-based use of force
authorization of the mandate or the Article 51/customary international law
right of self-defense. Reasonableness requires that issuance of the mission
accomplishment rule result from evidence that activities at the site(s) have
moved it along the continuum from a mere threat towards a target which has
acted in a threatening manner. Having just demonstrated hostile intent or
committed a hostile act would clearly meet the threshold.
In such cases, the temporal element surfaces again. The longer it has been
since the qualifying action, the more difficult it will be to justify an after the fact
air strike against the offending site(s) as an appropriate exercise of the
mandate. This is particularly so if at some point following the incident, aircraft
flying in the area were not threatened; the absence of reaction might indicate
that the initial malevolent act was an aberration. Since international law does
not permit acts in mere retribution (at least absent specific Chapter VII
authorization), a strike may be questioned on legal grounds. Therefore,
prudent ROE drafters will limit the extent of the authorization to restrike,
recalling the policy component of ROE, to a level at minimum consistent with
the relative political fragility of the particular operation. This can be done by
setting time standards (e.g., no strike more than X hours after the incident) or
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by physical criteria (e.g., strike only with aircraft currently airborne or on strip
alert).
Finally, it is vital to remember that hostile intent and hostile acts are merely
shorthand for the necessity requirement of self-defense. In fact, necessity is
slightly more restrictive than either intent or act, for there are situations in
which it is not necessary to engage, even when a hostile act has been
committed. Consider an individual firing a pistol out the door of a helicopter at
a fighter trailing it out of the zone. In most cases, the weapon poses little threat
to the fighter, which can easily lengthen the distance/altitude from which it is
trailing the helicopter. Unless the mission accomplishment ROE allow a
forceful response based on the act, there is ample time to seek guidance before
resorting to force. Remember, the use of force in self-defense has no retributive
or deterrent purpose; it merely serves to protect one's self and one's unit. There
is no authority to engage under the law of self-defense until friendly forces
actually need to be protected. 115
The second prong of self-defense is proportionality. Proportionality is
defined as the requirement that "the use of force be reasonable in intensity,
duration, and magnitude, based on all the facts known to the commander at
the time, to decisively counter the hostile act or hostile intent and to ensure
the continued safety of U.S. forces." 116 Several fine points about this definition
merit mention. One is the pervasive question of proportional to what? Many
laymen interpret the requirement as "proportional" to the force used against
them. By this interpretation, one could not respond to small arms ground fire
with bombs or use a missile to down a helicopter that has employed machine
guns against an aircraft. This is clearly not the proper reading. The right to use
self-defense is designed to protect without unnecessarily escalating the
hostilities; it is not a rule designed to ensure a "fair fight" on a level playing
field.
Properly understood, proportionality as used in the ROE allows the
application of no more force than necessary to counter the hostile act or
demonstration of hostile intent. 117 Aircrews train to the standard of using the
minimum force necessary to get the other side to "knock it off," without taking
unnecessary risks themselves. For instance, a missile launch by a single SAM
site would not merit a response in self-defense against other SAM sites in a
country — at least not in self-defense. 118 Similarly, consider a combat search
and rescue (CSAR) effort. A column of soldiers moving towards a downed crew
member likely harbors hostile intent if the aircraft was shot down by its forces.
The troops would reasonably appear to be on their way to capture the crew
member. The existence of necessity is clear, for the opposing forces are unlikely
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to be deterred except by force (or a demonstration thereof) , and the threat is
imminent (they are approaching). May the column be attacked and destroyed?
Recalling that a no-fly operation is underway rather than open hostilities, the
answer is — it depends. If the column can be deterred by warning shots or
selective destruction of only a few of the vehicles without forfeiting the ability
to destroy it in its entirety, that should be tried. On the other hand, if it is nearly
upon the pilot or shooting at him, destruction of the entire column would
clearly be an appropriate response. 119
What then of the situation where the armament of the enforcement aircraft
clearly exceeds the amount of force actually necessary to cause the other side to
cease its threatening act? May it be used? Yes, because the law does not deprive
an aircraft under attack of the right to defend itself pursuant to Article 5 1
merely because the mission planners did not fully anticipate the nature of the
threat when determining the weapons load. The U.S. ROE account for this
very situation by specifically authorizing a response by "all necessary means
available" 120 Consistent with the law of self-defense, then, an enforcement
aircraft may use the amount and type of force currently available to it that is
reasonably necessary to deter a demonstration of hostile intent or defend against
a hostile act.
As should be clear from the discussion of necessity and proportionality,
determining when self-defense is appropriate is no easy task, particularly in the
heat of potential battle. Enforcement aircrews can only make subjective
educated guesses based on the information at hand. That information must be
"convincing," 121 but the resulting determination need not be correct, it need
only be reasonable — i.e., would a reasonable airman enforcing this specific
no-fly zone in the circumstances then prevailing have believed the information
sufficient to conclude an attack was forthcoming? 122 Constant scenario-based
training is the key to achieving reasonableness. 123
Before turning from the distinction between mission accomplishment and
self-defense ROE, it must be understood that they are independent; neither
limits the other. An action authorized in accordance with the mission
accomplishment ROE is not disallowed because it fails to meet the criteria for
self-defense. Thus, hostile intent and hostile act are generally not relevant
when acting pursuant to the mission accomplishment ROE. By the same token,
and more importantly, self-defense ROE are never limited by mission
accomplishment ROE. If the two should ever come into conflict, self-defense
always "trumps" mission accomplishment rules. 124 This is a core principle of the
U.S. approach to rules of engagement, one that is so central that U.S. forces are
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not permitted to operate under multinational rules of engagement inconsistent
with U.S. notions of self-defense. 125
This absolute severability of the two genre of ROE has important
implications in no-fly zone enforcement. For example, mission
accomplishment ROE will usually impose very stringent identification
requirements before a zone violator may be engaged. The goal is to preclude
mistakes such as those made during the Black Hawks shoot-down incident.
However, if the violator commits a hostile act or demonstrates hostile intent in
a situation necessitating an immediate response, it may be engaged in
self-defense regardless of whether or not it has been identified to the level
provided for in the mission accomplishment ROE. Similarly, if the mission
accomplishment ROE permit, a violator may be engaged even when it has
neither committed a hostile act nor demonstrated hostile intent.
The ROE System
ROE systems differ from State to State, with the exception that each country
usually issues some form of broad ROE that establish overarching national
rules. These are supplemented for specific operations. Whenever serving in a
combined operation, the need to understand a coalition partner's ROE system
is self-evident, particularly if a set of common ROE cannot be agreed upon.
When this occurs, it will be left to the Coalition Commander and the senior
officers from each nation contributing forces to develop tactical guidance that
accounts for their respective ROE differences in a way that plays to the
strengths in each country's rules.
The U.S. system is relatively straight forward. At the pinnacle are the Joint
Chiefs of Staff Standing Rules of Engagement (SROE). 126 Promulgated in 1994,
the SROE set forth general rules of engagement which govern the use of force
by the U.S. military during both peacetime and armed conflict (absent a
specific exemption). 127 They consist of a Chairman's Instruction, which
introduces the rules, and four enclosures: A - Standing Rules of Engagement
for U.S. Forces; B - Supplemental Measures; C - Compendium and Combatant
Commander's Special ROE; and D - References.
Enclosure A contains the basic rules of engagement that apply in all
operations, including those involving no-fly zone enforcement, and at all times.
No further authorization is needed for their execution by aircraft enforcing a
zone. 128 The enclosure describes the purpose, scope and policies underlying the
rules. More importantly, Enclosure A contains the self-defense rules of
engagement. Appendices for Seaborne Forces, Air Operations, and Land
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Operations are attached. When issues of self-defense in the no-fly
environment arise, it is to Enclosure A that reference should be made. 129
Supplemental measures, grouped into appendices for general measures,
maritime, air, and land operations, are found in Enclosure B. It is essentially a
catalogue of draft rules of engagement that decision makers at the appropriate
level can turn to in crafting mission accomplishment rules to support a
particular operation. For example, possible measures such as the authority to
pursue aircraft across designated borders, defend designated non-U. S. assets,
or conduct reconnaissance are included. The authorization level for the
supplemental varies depending on the nature of the rule sought.
Enclosure C contains a compendium of guidance on the ROE. It also gathers
standing rules of engagement issued by the U.S. Combatant Commands to
complement the SROE for the area or function the combatant command
controls. 130 In a no-fly zone operation, it is essential to understand both the SROE
and the standing ROE of that command which has authority over the operation. 131
Lastly, Enclosure D lists references and contains a glossary of abbreviations,
acronyms, terms and definitions. The glossary is particularly useful in achieving
common understanding of the rules. For instance, some States do not allow the
use of force in the face of hostile intent as a measure in self-defense. Yet,
optimally, the threshold to cross prior to using force should be the same for all
assigned forces in a combined operation. To achieve this commonality,
non-U. S. armed forces that do not apply the intent criterion would have to
receive the equivalent of mission accomplishment ROE authorizing a response
to hostile intent before they could react as U.S. forces would under the SROE.
Sometimes the difference is more one of form than substance. For instance,
U.S. forces usually consider being illuminated by an aircraft's fire control radar
to be a demonstration of hostile intent that may require a forceful response.
Certain coalition allies, on the other hand, may characterize the illumination
as a hostile act. In practical terms, the ROE are consistent. The glossary can
provide a useful tool for seeking common ground between differing national
terminology. Conversely, it can be used to identify substantive variance when
the same or similar terms are used.
As noted, combatant commands issue supplemental measures that are the
operation-specific mission accomplishment rules of engagement. Those selected
are usually activated in an Operation Order outlining execution of the
operation. 133 They may also be requested by any subordinate commander (usually
a Joint Task Force QTF] commander) tasked with enforcing the no-fly zone. This
option is available throughout the course of the operation. If the JTF commander
comes to believe his ROE are flawed or insufficient to successfully execute the
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mission, he is obligated to seek whatever authority is necessary to remedy the
shortfall. Should Enclosure B not contain a suitable mission accomplishment
rule to meet his needs, he may draft and propose one of his own.
The need to revise the ROE during an operation is not uncommon. After all,
the original rules were responsive to the political and military environment
existing at the time of issuance; however, the environment is in constant flux.
For instance, additional SAM systems or ones with greater capabilities may
deploy into a previously benign area. If so, it may be prudent to request more
robust ROE for air-to-ground strikes in order to ensure the new SAMs do not
interfere with the mission. Or consider identification ROE, i.e., the rules
regarding how intruders and/or threats are to be identified, and with what
surety. If the target State deploys high performance fighter aircraft into an area
where there had previously been only helicopters or low performance aircraft,
it would be prudent to develop beyond visual range (BVR) identification ROE
in lieu of existing ROE requiring visual identification. Alternatively, if
enforcement aircraft with a greater capability to identify potential intruders
deploy into a JTF's tactical area of responsibility (TAOR) , then for legal and
policy reasons it may be wise to make the identification ROE more restrictive,
at least vis-a-vis missions involving such aircraft.
A shift in the ground situation can also require revision. Consider, the
combat search and rescue (CSAR) ROE. If there are friendly forces or friendly
indigenous groups in the area, then the rules of engagement for air support to a
downed crew member will be much less robust than in a region where anyone
approaching the crew member is probably unfriendly. In the former case, a
friendly-fire incident is a concern, thereby making it absolutely essential that
those approaching be positively identified. In the latter, the primary concern
will be safe and prompt recovery of the crewman. If the ground situation
changes, then so too should the ROE (or the guidance thereon) . Indeed, any
change in the environment — political, military, or legal — should occasion a
review of the ROE. 134
When drafting supplemental ROE, combatant commands should not
attempt to supplement the SROE self-defense rules. Self-defense is already fully
provided for in the SROE to the maximum extent allowed in international law.
Along these same lines, use of self-defense terms of art such as "hostile act" or
"hostile intent" in the combatant command's ROE is also ill-advised, for
combatant commander ROE are mission accomplishment rules. Attempts to
expand or explain the right of self-defense in the form of supplemental ROE
may inadvertently result in interpretations that are inconsistent with the policy
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aims for the operation or complicate the exercise of self-defense by
enforcement aircraft.
As a hypothetical example, consider a combatant command rule of
engagement that reads, "Illumination of JTF aircraft by fire control radar of a
surface-to-air missile site is a demonstration of hostile intent justifying an attack
on the emitting site in self-defense." This seemingly clear rule invites confusion
for a number of reasons. Those experienced in ROE will know that the
combatant command ROE are intended for mission accomplishment. Their
immediate question will be whether or not this rule sets a different standard than
the SROE self-defense principles, particularly since a basic premise of ROE
draftsmanship is to never create lists of hostile intent. The sense that maybe the
rule is but a poorly articulated effort to set a lower threshold than would normally
be the case for self-defense is strengthened by the operational fact that the range
or altitude parameters of the fire control radar of some SAM systems significantly
exceed their weapons engagement zone. 135 When this is so, illumination may be
an unfriendly act, but it is not a demonstration of hostile intent because no threat
can be posed. 136 By this stream of analysis, the rule is interpreted as a poorly
drafted mission accomplishment rule that allows the SAM site to be engaged at a
point which might not be justified in self-defense. This is not to say that lowering
the threshold would be unreasonable or unlawful. A mission accomplishment
rule along these lines is in most no- fly contexts a reasonable attempt to create a
safe environment in which to operate. The point is simply that if the intent is not
to alter the existing threshold, the rule invites confusion.
The obverse is equally possible. Given inclusion of the terms self-defense
and hostile intent, a reasonable conclusion would be that the rule is an attempt
to refine the already applicable SROE self-defense rules. But if the actual intent
is to lower the threshold, then that intent will have been frustrated.
Conversely, if the goal is to clarify self-defense, there is a risk that aircraft will
hesitate to defend themselves in the face of what would otherwise be a
demonstration of hostile intent until they have been illuminated by a fire
control radar. This is the very danger that the drafting prohibition on lists of
acts demonstrating hostile intent is directed against.
The possibility of confusion is not far-fetched. Envision a scenario in which
multiple enforcement aircraft are in the no-fly zone. Suddenly, there are
several radar warning receiver (RWR) indications that they are being painted
by fire control radar; one pilot reports seeing a missile on its way up.
Meanwhile, another enforcement aircraft receives a RWR indication of target
acquisition radar associated with a SAM site, but no indication of fire control
radar. 137 Standard hostile intent ROE would allow an immediate attack on the
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site emitting in the acquisition mode. At least one other ground site has already
committed a hostile act, and activation of acquisition radar by a second site
would reasonably appear to be a continuation of the effort to down an
enforcement aircraft. Further, some SAM systems are able to fire their missiles
while in target acquisition mode, switching to missile guidance only after the
missile has been launched. A rule crafted in terms of fire control radar could
delay appropriate actions in self-defense against the second site.
The suggestion that combatant command supplemental ROE is the wrong
place to amplify self-defense, and the urging against lists of acts which
constitute a demonstration of hostile intent, does not mean to imply that rules
of engagement should be set forth in a void of possible scenarios. What it does
suggest is that tying them to real-world situations is best left to those tasked
with the actual execution of the mission, most often a JTF Commander and his
Joint Forces Air Component Commander (JFACC).
It is at this level that the third, and for the aircrew most critical, phase of no-fly
ROE development and implementation occurs. Typically, a JTF commander will
issue guidance on the application of the ROE to his aircrews. 138 This guidance
should be drafted jointly by the operation's staff judge advocate, who will be
attuned to legal concerns and the nuances of precision draftsmanship as well as
the JFACC, the officer responsible for operational matters. The guidance will be
issued by the JTF commander, the one individual in the organization who best
understands the policy mandate he has been given. Thus, all three underlying
components of the ROE are accounted for in the guidance.
The commander's guidance is not a formal part of the rules of engagement.
Rules of engagement set forth the parameters of what it is that enforcement
aircraft may do. The commander's guidance on the application of the ROE
takes those instructions and sets out how the tasks will be accomplished. For
instance, the mission accomplishment ROE will state that a particular type of
aircraft violating the no-fly zone may be warned to depart, and if it does not,
engaged. The guidance, by contrast, outlines the form and content of the
warning and the requisite identification criteria before the violating aircraft
may be shot down. It authorizes no act not already authorized in either the
SROE or the combatant command's supplemental ROE.
Though lengthy by comparison to the ROE, the commander's guidance
should inform crew members how they can defend themselves and accomplish
the mission, not constitute a legal treatise. Furthermore, the ROE guidance
should be based on various situation specific factors: the tasked mission, the
threat from ground and air-based systems, capabilities of enforcement assets,
and tactical good sense. It must also be subject to a robust legal analysis, not
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only for compliance with the legal limits/authorizations found in the ROE, but
more generally with international law, especially the law of armed conflict.
Recurring Issues
In any no-fly zone operation, there are three seminal goals: 1) no violations;
2) no mistakes; and 3) no friendly losses. The first is intended to achieve the
policy mandate without raising the political stakes by actually having to shoot
down an aircraft that dares test the zone. Its success depends on deterrence
through credibility, the product of capability and perceived willingness to
enforce. Critical to this deterrence is maintaining control over when and in
what way enforcement aircraft occupy the zone. In other words, it is important
that the target State not be able to drive enforcement aircraft from the zone,
thereby opening it to their own. 139 It is equally important that the engagement
decision matrix not be so involved, or the authority to engage so highly set, that
enforcement aircraft cannot react in a timely fashion.
The second goal, no mistakes, is intended to maintain the international
political cohesion that made possible establishment of the zone in the first
place. In that no-fly zones are intrusions on the sovereignty of a State, setting
one up is a rather exceptional decision for the international community to
make. Continued legitimacy of the zone depends on strict compliance with the
limits of the mandate by enforcing States.
Lastly, the operation must be mounted safely, both for the sake of the
aircrews involved and to maintain domestic and international support for the
operation. This requires a full understanding of what the law of self-defense,
and the ROE articulating it in the operational context, allows. None of these
goals can be achieved without clarity of purpose and execution. In the
remaining section of this article, several of the recurring issues that tend to
generate confusion or hesitation during no-fly zone operations will be
examined.
Who to Shoot and When? The question of who to shoot is far more complex
than might appear at first glance. To the extent the policy mandate does not
specify the precise subjects of enforcement, the ROE must do so. Of course,
those ROE cannot extend enforcement authority beyond what is a reasonable
interpretation of the mandate, for mission accomplishment rules permitting
the use of force depend on the mandate involved for legality and legitimacy.
Effectively drafted mission accomplishment ROE will, at a minimum, make the
following clear for enforcement aircrews.
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• What nationality are the aircraft that enforcement action can he taken
against? Zone prohibitions should be framed with specificity in the ROE.
Obviously, aircraft of the target State will be included. However, that State
might be allied or cooperating with other States, the aircraft of which may
attempt to enter the zone. If so, decision makers should consider extending
the zone's prohibitions to include aircraft of such States. Alternatively, a zone
may be expressed in terms of a general prohibition, with specific aircraft
exempted. For instance, UN aircraft are permitted to fly in the zones over
Iraq, and do so often in their weapons monitoring role. 140 Similarly, relief or
humanitarian flights by specified countries or organizations may be
exempted. Whenever there are either exemptions to a general prohibition or
specific prohibitions on aircraft of a certain nationality, rigid identification
procedures must be in effect before a possible violator may be engaged. 141 As
the Black Hawks shoot-down so tragically demonstrated, determining
aircraft nationality can be a challenging proposition.
• Does the prohibition extend to civil aircraft? There is little doubt that no-fly
zones may be enforced against military aircraft. 142 The legality of using force
against civil aircraft is a far less settled issue, as the downing of Korean Airlines
flight 007 (KAL 007) over the Soviet Union in 1983 demonstrated. 143
International outrage was expressed loudly and immediately. But for a Soviet
veto, the Security Council would have passed a resolution declaring that "such
use of force against international aviation is incompatible with the norms
governing international behavior and elementary considerations of
humanity." 144 The International Civil Aviation Organization (ICAO)
approved a resolution containing identical language. 145 Following a
fact-finding commission review of the incident, the ICAO Council
subsequently reaffirmed that "whatever the circumstances which . . . may have
caused the aircraft to stray off its flight plan route, such use of armed force
constitutes a violation of international law, and invokes generally recognized
legal consequences." 146 Not long thereafter, the ICAO Assembly adopted a
proposal for amendment of the Chicago Convention. Article 3 his provides that
"the contracting states recognize that every state must refrain from resorting to
the use of weapons against civil aircraft in flight and that, in case of
interception, the lives of persons on board and the safety of the aircraft must
not be endangered." 147 Though it has yet to secure the 102 ratifications
necessary to come into effect, there is some support for the position that it is in
fact declaratory of existing customary law. 148
Despite the crescendo of condemnation following KAL 007, the existence of
a Security Council Chapter VII mandate would arguably allow enforcement
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against a civil aircraft in a no-fly zone, even if downing it would otherwise
violate international law. The Charter is, as discussed earlier, supreme.
Nevertheless, it should be obvious that any downing of civilian aircraft would
be highly controversial, regardless of its purported legality. Therefore, before
drafting ROE vis-a-vis civil aircraft, it must be absolutely clear that the original
mandate authorizing the zone was intended to cover them; during
post-incident furor over a civil aircraft shoot-down is the wrong time to
discover that it does not.
Even if it is clear that such action is authorized by the mandate, the
authorization level for actually engaging should remain at a level where the
decision maker can factor in the policy and political environment then
existing. The fact that one can shoot down a civil aircraft violating a no-fly
zone does not mean that one should. Downing armed fighters that violate the
zone is relatively straightforward from a policy perspective; shooting down
civilian aircraft is an entirely different matter. Not only should the approval
level be highly placed, but the steps that the enforcement aircraft must perform
before it may engage a civil aircraft in mission accomplishment need to be very
carefully considered. In particular, the ROE (and commander's guidance on
the application of the ROE) must ensure positive identification and impose
redundant warning requirements. The warning requirement is particularly
important — it acts to shift the onus of responsibility for the shoot-down to the
violating aircraft. Additionally, because civil aircraft are being intercepted,
tactical guidance for intercept methodology should comply with the
procedures set forth by ICAO. 149
Finally, in determining if, when, and how to engage civil aircraft, account
should be taken of what it is they are doing. The closer the aircraft is to
performing a military function, the less the political risk. It is likely that ROE or
ROE guidance based on what the aircraft is doing may prove difficult to
execute. Even with a visual (VID) intercept, it may be impossible to determine
if it is carrying military or humanitarian relief supplies. Nevertheless, in certain
circumstances, ROE based on act (e.g., air-dropping supplies) may make sense.
Of course, if a civil aircraft commits a hostile act or demonstrates hostile intent
necessitating a response in self-defense, enforcement aircraft may defend
themselves.
• Does the type of aircraft make a difference? When the two Black Hawk
helicopters were downed over northern Iraq, some criticism was voiced
because the helicopters posed no serious threat to the two F-15s. What is
forgotten in this assertion is that mission accomplishment ROE were applied in
the shoot-down; a threat is not generally a prerequisite in these rules. The
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question of whether the F-15s were threatened by the helicopters (if they had
actually been Iraqi Hinds) 150 is one of self-defense; in fact, there was never any
claim that the F-15s mistakenly acted in self-defense.
The incident highlights the fact that the type of aircraft violating the zone
matters when contemplating enforcement action. The more offensively
capable the aircraft, the more acceptable the enforcement action, and the less
likelihood of negative impact on the policy aims underlying the zone.
Understanding this fact is useful in crafting ROE and ROE guidance that is
responsive to the policy component of the rules of engagement.
. When considering criteria and intercept procedures based on type of
aircraft, probably the cleanest distinction that can be made, at least from the
perspective of the enforcement aircraft's cockpit, is between fighter/attack
aircraft, transport aircraft, and helicopters. Whether the three should be
handled differently depends on the context in which the no-fly zone exists. If
helicopters have been active in air-to-ground operations, the need to
distinguish between engaging fighters and helicopters is minimal. Both are
offensively oriented threats to the maintenance of peace. By the same
reasoning, if establishment of the zone was primarily in response to the threat
to peace posed by ground attack aircraft, it may be prudent to set different
procedures for responding to helicopters and transports. This certainly is not
required as a matter of law so long as the mandate covers all military aircraft,
but it is a prudent political step to take. The point is that enforcement
procedures and criteria must reflect attendant conditions; type of aircraft is one
variable ROE drafters and enforcement operation commanders should consider
to ensure this.
If a decision is made to treat varying types of aircraft differently, the
differences will lie primarily in identification and warning. Because of the high
risk involved in flying close enough to fighter/attack aircraft to visually identify
them, it is appropriate to authorize beyond visual range identification and
engagement in most circumstances. By contrast, since they pose minimal
threat to high performance fighter aircraft, a visual identification of helicopters
and transports is ordinarily a reasonable requirement from a tactical
perspective. If tactically acceptable, doing so would certainly make sense from
a legal or policy perspective.
Differences in the warning requirement take two forms, procedural and
substantive. Procedurally, the ICAO intercept procedures are viable in the case
of helicopters or transports, but would not be when intercepting a fighter
aircraft with air-to-air capability. Substantively, the nature of a particular
operation may justify dispensing with the warning requirement altogether for
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fighters, or even for helicopters if they have previously been involved in
offensive operations. Violating the zone may alone be sufficient justification for
engaging them. On the other hand, and again in situation-specific scenarios, it
may be politically judicious to warn helicopters or transport aircraft out of the
area before acting to shoot them down.
• Who authorizes engagement of violators? Whereas the authority to act in
self-defense must reside in the cockpit, the decision as to when to engage in a
mission accomplishment intercept can be set at whatever level makes sense
from a policy and operational perspective. 151 Context is controlling. The more
politically sensitive a particular type of engagement, the higher the
authorization level should be set. For example, if consistent with the
operational context, the decision may be made to let the aircrew of the
enforcement aircraft determine when to engage a fighter, but require a decision
by the JFACC or task force commander to engage anything else. The most
sensitive issues surround civil aircraft. It would be unwise to let aircrew act
against civil aircraft without higher approval; the political consequences of the
act are simply too momentous.
Who to Defend? As noted earlier, U.S. aircraft may always defend themselves or
other U.S. military assets. No supplemental rule is required to effectuate this
right. This core principle extends to all U.S. military assets, whether assigned to
the task force or not. Thus, if Iraqi forces engaged U-2 flights operating in
support of the UN weapons monitoring operation (United Nations Special
Commission-UNSCOM), as was threatened, U.S. forces of either SOUTHERN or
NORTHERN WATCH could act in their defense without any further approval. 153
Beyond that, a specific supplemental rule must be issued to authorize
defense offerees of any other State or organization. In most cases, there will be
a supplemental rule authorizing defense of all aircraft participating in
monitoring the no-fly zone. Careful review of the scope of the authorization is
well-advised. Does it only apply to aircraft assigned to the operation or to
aircraft of those States generally? 154 Are there geographical limits placed on the
exercise of this collective self-defense? 155 Are there any tactical limits?
As a matter of law, States may not unilaterally extend protection to other
States absent their consent. 156 Collective defense ROE should not be approved
until such a request has been received; generally, this will occur during the
planning phase of the operation. An interesting derivation of this premise
involves the extent of self-defense authorized. If the protected State's
interpretation of self-defense is narrower than the U.S. interpretation, e.g., by
limiting self-defense to hostile acts, may U.S. aircraft nevertheless act based on
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their own standard (which includes notions of hostile intent) ? The answer is
technically "yes," because intent is an appropriate criterion for self-defense
under Article 5 1 of the UN Charter, which does not distinguish between State,
individual, and collective defense. However, they should do so only if the
consent of the protected State is express. 157 This position is a logical extension
of the ab initio need for consent to collective self-defense.
Extension of direct defense to international governmental organizations (e.g.,
UN), non-governmental organizations (e.g., relief organizations), or any other
groups that may be threatened (e.g., the Kurds) also requires specific
authorization. As in the case of States, a request for such assistance should precede
its execution. This point bears only on the issue of immediately necessary
self-defense of such organizations and groups. Beyond that, mission accomplishment
ROE may be fashioned to implement a national policy providing for their defense.
The question of defense involves not only who to defend, but also against
whom. For U.S. forces defending themselves, the SROE rule is clear — anyone. The
matter is murkier when defending forces of other States or organizations. A
coalition partner may be engaged in entirely separate operations in the target State
or have disputes with neighbors unrelated to the no-fly zone enforcement. 158 To
come to the defense of its aircraft in other than the no-fly zone enforcement
context is to risk creating the impression that the U.S. or its coalition allies have
taken sides in an unrelated dispute. When this potential exists, ROE and/or the
guidance issued thereon must be carefully drafted to ensure collective defense is
engaged in only as it pertains to the no-fly operation itself.
Where Can Enforcement Aircraft Fly . . . and Enforce? There are few
principles more established in international law than territorial inviolability.
This inviolability extends not only to physical crossings of international
borders, but also to the causation of harmful effects in other States. 159 Control
over airspace by a State is near absolute within its land borders and territorial
sea; it is even more absolute skyward to the point where space begins. 160 The
three exceptions to the need for State consent prior to entry into national
airspace are flights pursuant to a Chapter VII authorization (e.g., a no-fly zone),
necessity in a self-defense situation, force majeure, and assistance entry when
immediately necessary to save lives. Each applies in the no-fly zone context,
and ROE and ROE guidance should reflect the relevant legal principles.
First, because of the principle of territorial inviolability, an ROE
supplemental rule must specifically authorize the crossing of international
borders. The legal basis for the authority to cross into the target State is
obviously the Security Council's express or implied mandate. Beyond that,
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consent would be required to cross any other borders necessary to enforce the
zone. If not granted, violators could not be pursued into neighboring States. An
oft heard contrary assertion is that they may be chased across international
borders when enforcement aircraft are in "hot pursuit." 161 The assertion is
mistaken, for the term hot pursuit is a legal concept limited to either law
enforcement or the proportional protection of territorial sovereignty.
Moreover, the pursuit is typically from the enforcement State's territory into
international airspace, not into the sovereign airspace of a third State. 162 There
being no international legal doctrine of hot pursuit per se applicable to a no-fly
zone operation, any pursuit that occurs must be based on the authorizing
mandate or consent. Where pursuit is generally appropriate is in pursuing a
violating aircraft back across a no-fly line within the target State. Since the
flight is into the target State's airspace, permitting enforcement aircraft to
pursue such violators is a reasonable interpretation of the mandate, absent
indications otherwise that it was not so intended.
Another argument sometimes heard is that if violating aircraft use
neighboring States as sanctuary from enforcement aircraft, and the "host"
States fail to act effectively to preclude that practice from continuing, then
enforcement aircraft may cross the relevant border to deny violating aircraft de
facto sanctuary. 163 This is impermissible without express or implied Security
Council authorization. The right to cross borders in self-help derives from
application of the law of neutrality and the existence of opposing
belligerents. 164 However, no-fly operations usually occur in the absence of
classic belligerency between the States enforcing the zone and the target State.
Additionally, Security Council approved actions are typically specific as to the
identity of the target of the sanctions. The sanctuary State is not yet one. That
being so, additional authorization should be sought before crossing borders not
encompassed by the original grant of authority. 165
The major exception for no-fly zone enforcement border-crossing authority
involves self-defense. There is no geographical limitation to the inherent right
of self-defense. Enforcement aircraft defending themselves or others may cross
or shoot across any borders in self-defense. For example, if an intruder aircraft
illuminates an enforcement aircraft with its fire control radar from across a
neighboring border, a response in self-defense may be necessary. The existence
of the border should not affect the aircrew's decision to defend. Further, in an
actual air-to-air engagement, the existence of all aspect missiles and the ability
of high performance aircraft to rapidly turn and engage often make it difficult,
if not impossible, to ascertain when an engagement has broken off. As a result,
enforcement aircraft may sometimes have to "pursue" intruder aircraft across
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borders while the engagement is ongoing. Recalling that this is an act in
self-defense, rather than one in mission accomplishment, the pursuit (really
the continuation of the engagement) is legal so long as the aircrew's belief that
they are still engaged and need to defend themselves is reasonable. Since each
of these situations is based on the right to self-defense, no specific supplemental
ROE are required.
Force majeure is the principle of international law that a State must allow an
aircraft in distress (from weather, mechanical problems, etc.) to enter its
airspace and land if no other safe alternative is available to it. Note that the
right of military aircraft to claim force majeure entry is unsettled. 166
Nevertheless, given the alternative, which may very well be bailing out over
the territory of the no-fly zone target State, the logical course of action in most
cases is to at least attempt entry on the basis of force majeure.
Finally, the right of assistance entry is the right to enter a State's territorial
sea or airspace to effect the rescue of a downed crew member at sea. 167 Whether
it extends to downed crew members on land is unsettled. Arguably, it is an
obligation of the State in whose territory a downed crew member is located to
come to the aid of such a person. 168 If that State is not attempting to recover the
crew member or refuses to consent to entry of the rescue aircraft from the
enforcement forces, and it appears the lives of the crew are at risk due to
injuries or the elements, then a colorable claim exists that, under the doctrine
of self-help, rescue forces may enter for the very limited purpose of recovering
the crew.
Miscellaneous Issues. There are a myriad of context-specific issues that arise
during no-fly-zone operations, the resolution of which depends on an
extremely close working relationship between judge advocates and operators.
Many arise in the air-to-ground arena. The key to effective air-to-ground ROE
is to focus on the distinction between the self-defense and mission
accomplishment ROE. Mission accomplishment ROE, designed to create a
benign environment in which to enforce the zone, should never be mistaken
for self-defense ROE, which are intended to ensure an enforcement aircraft an
adequate defense against a hostile act or demonstration of hostile intent.
Along these lines, a pervasive issue is the identification criteria for engaging
SAM sites in mission accomplishment. It is not unusual for there to be spurious
indications on an aircraft's RWR gear of SAM site activity. Therefore, mission
accomplishment ROE may require multiple indicators which must be received
before a site may be engaged in mission accomplishment. After all, in order for
deterrence to work, the entity to be deterred must be able to determine clearly
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at which of its acts the response was aimed. However, the criteria in no way
affect a crew's response in self-defense. Aircrews need to be sensitive to the
likelihood of spurious returns and factor that reality into their determination of
whether a hostile act or demonstration of hostile intent has occurred. That
said, the decision to engage in self-defense is theirs alone to make, regardless of
whether mission accomplishment criteria have been met.
Another common air-to-ground scenario involves combat search and
rescue operations. As noted earlier, a crucial question is when may supporting
aircraft engage ground forces approaching the downed crew member. As with
any self-defense situation, the ROE and commander's guidance should avoid
creating checklists of acts demonstrating hostile intent. It may cite sample
indicators though, caveating the list with the need to apply them contextually.
Relevant factors may include the reason the crew member is down (hostile fire
or mechanical problems?), who controls the territory he is in (the target State
or indigenous groups friendly to the enforcement operation), and who is
approaching him and what their reaction is to measures short of the use of
force, such as the presence of enforcement aircraft. The commander's guidance
should also set forth who controls the decision that a response in defense of the
downed crew is necessary, lest the recovery operation become disjointed. The
decision should rest with the on-scene commander, though the commander's
guidance must make clear who is serving in that role. 169
In both these examples, basing ROE on sound intelligence and tactics is
crucial to success. The determination of whether an act in self-defense is
necessary in the face of fire control radar illumination may need to turn on
whether the SAM system is mobile or not. If intelligence is generally reliable
and an enforcement aircraft receives a RWR indication of a non-mobile SAM
site from a location at which there is no known site, that should cause less
concern (possibly a spurious hit) than an indication of a mobile SAM that may
have been placed there under the cover of darkness. Similarly, recall the
discussion of the threat system's WEZ when considering defensive actions.
Some might be lulled into complacency when they receive an indication oi a
SAM that cannot reach their altitude. Yet, good intelligence work may indicate
that it is possible to use the radar of that particular system to feed data to
another system armed with a missile of greater altitude capabilities. This
intelligence data will likely be determinative in assessing whether to engage in
self-defense.
In the air-to-air environment, a recurring concern is the degree of certainty
necessary before engaging a violator. 170 There is no easy answer to this
dilemma. As a general rule, the best approach is to require all reasonably
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available systems to attempt to identify a target before it is engaged if it poses no
threat. Not only would this require visual identification, but it would also
necessitate a call by any command and control aircraft working the area (such
as an AW ACS) that it had no indications the target was anything but a
wrongful violator. Additional sources of information that should be considered
include intelligence information, the location of the aircraft when it was first
noted (e.g., was it in the target State), on-board electronic identification
systems that enforcement aircraft possess, non-responsiveness to warnings, and
identify friend or foe (IFF) squawks (or the absence thereof) . m The further one
moves along the continuum toward aircraft which pose a threat, the more
authorization of beyond visual range identification and engagement may be
appropriate. Of course, identification criteria should never serve to keep an
aircraft from defending itself against what it reasonably believes to constitute a
threat under the self-defense rules of engagement.
Rules of engagement, and the commander's guidance on ROE issued to
implement them, are tools for integrating policy, legal, and operational
concerns and limits during a no-fly zone operation. It is absolutely critical that
all three concerns be carefully factored into their development, for the speed
with which the aerial picture unfolds is such that ROE for no-fly zones must be
very precisely and carefully crafted if the political mandate is to be
implemented at minimum risk. As the Black Hawks incident so tragically
illustrated, there is no room for error.
Ultimately, two themes must pervade the development of effective ROE for
no-fly zone enforcement. First, the distinction between self-defense and mission
accomplishment rules has to be clear on the face of the ROE and any guidance
thereon. If not, either the mission or the crews who execute it will be placed at
risk. Second, the importance of ensuring that operational concerns are addressed
in the ROE and guidance is paramount. Effective ROE are the product of a firm
grasp not only on the law and the foundational policy objectives of the operation,
but also operational reality. Abstract legal or policy discourses only serve to
obfuscate the guidance aircrews need to succeed and survive.
Notes
A version of this article is forthcoming at 20 LOYOLA L.A. INT'L & COMP. L.J. (1998).
1 . On the effect of bipolarity's demise vis-a-vis the Charter security scheme, and obstacles
to the emergence thereof, see Michael N. Schmitt, The Resort to Force in International Law:
Reflections on Positivist and Contextual Approaches, 37 A.F. L. REV. 105 (1994). See also W.
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Michael Reisman, Allocating Competences to Use Coercion in the Post-Cold War World: Practices,
Conditions, and Prospects, in LAW AND FORCE IN THE NEW INTERNATIONAL ORDER (Lori F.
Damrosch & David J. Scheffer eds., 1991).
2. On no-fly zones generally, see David E. Petersen, The No-fly Zones in Iraq: Air
Occupation (June 1996) (unpublished manuscript on file at the Naval War College (NWC)
library); John N.T. Shanahan, The Roles of Operational Design and Synchronization in No-fly
Zones: Tactical Success, Strategic Failure, and the Missing Link (June 1996) (unpublished
manuscript on file at the NWC library) .
3. The operational code is the unofficial, but actual normative system governing
international actions. It is discerned in part by observing the behavior of international elites.
Operational code is contrasted with the "myth system," the law that, according to such elites,
purportedly applies. On the distinction, see W. MICHAEL REISMAN & JAMES BAKER,
Regulating Covert Action: Practices, Contexts and policies of Covert Action
Abroad in international and American Law 23-24 (1992); W. Michael Reisman,
JURISPRUDENCE: UNDERSTANDING AND SHAPING LAW 23-35 (1987); Schmitt, Resort to
Force, supra note 1, at 112-119.
4. The U.S. Rules of Engagement, described infra, are set forth in Chairman, Joint Chiefs
of Staff Instruction (CJCSI) 3121.02, Standing Rules of Engagement for United States Forces
(1994) [hereinafter SROE]. This document is classified SECRET, but all portions cited herein
are unclassified. Additional useful discussions of the ROE include Richard J. Grunawalt, The JCS
Standing Rules of Engagement: A Judge Advocate's Primer, 42 A.F. L. REV. 245 (1997) (focusing on
the SROE) ; Bradd C. Hayes, Naval Rules of Engagement: Management Tools for Crisis, Rand
Note N-2963-CC Quly 1989) ; John G. Humphries, Operations Law and the Rules of Engagement in
Operations Desert Shield and Desert Storm, AlRPOWER J., Fall 1992, at 25; W. Hays Parks, Righting
the Rules of Engagement, PROCEEDINGS, May 1989, at 83; Guy R. Phillips, Rules of Engagement: A
Primer, THE ARMY LAWYER, July 1993, at 4; J. Ashley Roach, Rules of Engagement, NAVAL WAR
C. REV., Jan. -Feb. 1983, at 51; Stephen P. Randolph, Rules of Engagement, Policy, and Military
Effectiveness: The Tie That Binds (Apr. 1993) (unpublished manuscript available through
DTIC and on file at the NWC and Air War College libraries) (focusing on air ROE during the
Vietnam War and ROE in Beirut in 1982-83); Scott E. Smith, What Factors Affect Rules of
Engagement for Military Operations Other Than War (May 1995) (unpublished manuscript on
file at the NWC library) ; Butch Thompson, Factors Influencing Rules of Engagement and ROE's
Effect on Mission (Nov. 1995) (unpublished manuscript on file at the NWC library).
5. As of 1 April 1998, Operations NORTHERN WATCH and SOUTHERN WATCH
continued. Classification of the ROE is necessary for very practical reasons. A State against
which a no-fly zone is imposed would have a much easier time of violating the zone if it knew
when enforcement aircraft would employ armed force against intruders, and, more importantly,
when they would not. Additionally, ROE set forth tactics for aircraft intercepts and attacks on
ground threats that would endanger enforcement aircrews if they were known in advance by the
target State forces.
6. Petersen explores the idea of a no-fly zone as an occupation. Petersen, supra note 2,
generally. It should be noted, however, that the concept of aerial occupation is not a legal one. In
traditional humanitarian law, occupation is a term of art for physical control by one belligerent
over land territory of another (or of a State occupied against its will, but without resistance).
When an occupation occurs, rights and duties arise as between the occupying power and
individuals located in the occupied area. An aerial occupation, by contrast, is simply a de facto,
vice de jure, status in which limits are placed on a State's use of its own airspace. Traditional
occupation law is found in Geneva Convention Relative to the Protection of Civilian Persons in
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Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention
IV] and Protocol Additional to the Geneva Conventions Relating to the Protection of Victims of
International Armed Conflicts, June 8, 1977, U.N. Doc. A/32/144, 16 I.L.M. 1391 [hereinafter
Protocol Additional I]. See also GERHARD VON GLAHN, LAW AMONG NATIONS 811-33 (6th
ed., 1992); LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 246-57
(1993); Hans-Peter Gasser, Protection of the Civilian Population, in THE HANDBOOK OF
HUMANITARIAN LAW IN ARMED CONFLICT 209-92 (Dieter Fleck ed., 1995).
7. The initial embargo prohibited the export or import of goods into either Iraq or Kuwait.
S.C. Res. 661, U.N. Doc. S/RES/661 (1990), reprinted in 29 I.L.M. 1325 (1990). In Resolution
665, the Security Council authorized the use of naval force in the implementation of 661. S.C.
Res. 665, U.N. Doc. S/RES/665 (190), reprinted in 29. I.L.M. 1329 (1990). See also S/PV/2938. In
Resolution 670, the Security Council extended the embargo to the aerial regime.
The Security Council . . . (d)ecides that all States, notwithstanding the existence of any
rights or obligations conferred or imposed by any international agreement or any contract
entered into or any license or permit granted before the date of the present resolution, shall
deny permission for any aircraft to take off from their territory if the aircraft would carry any
cargo to or from Iraq or Kuwait other than food in humanitarian circumstances, subject to
authorization by the Council or the Committee established by resolution 661 (1990) and in
accordance with resolution 666 (1990), or supplies intended strictly for medical purposes.
The Resolution also required States to:
(D)eny permission to any aircraft destined to land in Iraq or Kuwait, whatever its State of
registration, to overfly its territory unless:
a) The aircraft lands at an airfield designated by that State outside Iraq or Kuwait in order
to permit its inspection to ensure that there is no cargo on board in violation of resolution
661 (1990) or the present resolution, and for this purpose the aircraft may be detained as
long as necessary; or
b) The particular flight has been approved by the Committee established by resolution
661 (1990); or
c) The flight is certified by the United Nations as solely for the purposes of UNIIMOG.
S.C. Res. 670, U.N. Doc. S/RES/670 (1990), reprinted in 29 I.L.M. 1334, 1335 (1990). See also
S/PV/2943 (1990). On the subject of aerial enforcement operations generally, see Michael N.
Schmitt, Aerial Blockades in Historical, Legal, and Practical Perspective, 2 USAFA J. LEG. STU. 21
(1991).
8. The UN Charter regime for handling situations endangering international peace and
security is set forth in Chapters VI and VII. Chapter VI articulates measures for the peaceful
settlement of disputes; the actions provided for therein are entirely consensual. Chapter VI
operations using military forces are usually labeled peacekeeping. Though Chapter VII
contemplates peaceful steps to resolve a threat/ breach of the peace or act of aggression, it also
permits the use of force without the consent of the parties in order to maintain international
peace and security. Chapter VIII allows regional organizations (e.g., NATO) to deal with
matters regarding international peace and security if so authorized by the Security Council. On
peacekeeping, see BEYOND TRADITIONAL PEACEKEEPING (Donald Daniel &Bradd Hayes eds.,
1995); Myron H. Nordquist, WHAT COLOR HELMET? REFORMING SECURITY COUNCIL
PEACEKEEPING MANDATES (Newport Paper No. 12, Naval War College) (1997).
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9. U.N. Charter art. 39.
10. Id. art. 40.
11. Id. art. 41.
12. Id. art. 42.
13. Mission accomplishment rules of engagement are discussed infra.
14. The UNPROFOR mandate was originally one of peacekeeping. However, as the
situation in the former Yugoslavia deteriorated, Chapter VII sanctions were authorized. See, e.g.,
S.C. Res. 743 (Feb. 21, 1992), U.N. Doc. S/RES/743 (1992); S.C. Res. 757 (May 30, 1992), U.N.
Doc. S/RES/757 (1992); and subsequent UNPROFOR Resolutions, such as that allowing
UNPROFOR to defend safe areas [S.C. Res. 836 Qune 4, 1993), U.N. Doc. S/RES/836 (1993)] .
15. IFOR was authorized under Chapter VII. S.C. Res. 1031 (Dec. 15, 1995), U.N. Doc.
S/RES/1031 (1995). The Dayton Peace Agreement is at General Framework Agreement for
Peace in Bosnia and Herzegovina and the Annexes thereto, U.N. Doc. S/1995/999, annex, 35
I.L.M. 75 (1996); <http://www.nato.int/ifor/gfa/gfa-home.htm>. A compilation of material
related to the situation in the former Yugoslavia is at < gopher://marvin.stc.nato.int: 70/1 1/yugo > .
16. On Nov. 29, 1990, the Security Council, in Resolution 678, authorized: "Member
States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991
fully implements . . . the foregoing resolutions, to use all necessary means to uphold and
implement resolution 660 (1990) and all subsequent relevant resolutions and to restore
international peace and security in the area." S.C. Res. 678, U.N. Doc. S/RES/678 (1990). The
term "all necessary means" is the standard phraseology for authorizing armed force.
17. U.N. CHARTER art. 51: "Nothing in the present Charter shall impair the inherent right
of individual or collective self-defense if an armed attack occurs against a Member of the United
Nations, until the Security Council has taken the measures necessary to maintain international
peace and security. Measures taken by members in the exercise of this right of self-defense shall
be immediately reported to the Security Council and shall not in any way affect the authority and
responsibility of the Security Council under the present Charter to take at any time such action
as it deems necessary in order to maintain or restore international peace and security."
Numerous international agreements and pronouncements have reaffirmed this right of
self-defense since ratification of the UN Charter. See, e.g., Inter- American Treaty of Reciprocal
Assistance, Sept. 2, 1947, art. 3, T.I.A.S. No. 1838, 21 U.N.T.S. 77 (Rio Treaty) ; Declaration on
Principles of International Law Concerning Friendly Relations and Co-operation Among States
in Accordance with the Charter of the United Nations, princ. 1, G.A. Res. 2625, U.N. Doc.
A/8028 (1970); North Atlantic Treaty, Apr. 4, 1949, art. 5, 63 Stat. 2241, 34 U.N.T.S. 243;
Treaty of Friendship, Cooperation and Mutual Assistance, Oct. 10, 1955, art. 4, 219 U.N.T.S. 3
(Warsaw Pact Treaty).
18. Self-defense rules of engagement are discussed infra.
19. On humanitarian intervention, see FERNANDO R. TESON, HUMANITARIAN
INTERVENTION: AN INQUIRY INTO LAW AND MORALITY (2d ed. 1997). See also Richard B.
Lillich, Humanitarian Intervention Through the United Nations: Towards the Development of
Criteria, 53 ZEITSCHRIFT FUR AUSLANDISCHES OFFENTLICHES RECHT UND VOLKERRECHT 55 7
(1993). For a short summary of the subject, see Felix Lopez, The Lawfulness of Humanitarian
Intervention, 2 USAFA J. LEG. STU. 97 (1991).
20. In the Nicaragua Case, the International Court o{ Justice rejected any possible
argument for U.S. actions in Nicaragua on the basis of human rights: "In any event, while the
United States might form its own appraisal of the situation as to respect for human rights in
Nicaragua, the use of force could not be the appropriate method to monitor or enforce such
respect. With regard to the steps actually taken, the protection of human rights, a strictly
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humanitarian objective, cannot be compatible with the mining of ports, the destruction of oil
installations, or again with the training, arming, and equipping of the Contras. The Court
concludes that the argument derived from the preservation of human rights in Nicaragua cannot
afford a legal justification for the conduct of the United States." Military and Paramilitary
Actions in and Against Nicaragua (Nicar. v. U.S.) 1986 I.C.J. 13, at para. 268. The Nicaragua
case, regardless of the merits, is an illustration of why most of the international community
disapproves of humanitarian intervention. It is a principle subject to abuse, particularly by States
in a position of strength vis-a-vis the State in which the intervention occurs.
21. Article 2(7) of the Charter contemplates this very situation. It provides: "Nothing in
the present Charter shall authorize the United Nations to intervene in matters which are
essentially within the domestic jurisdiction of any state or shall require the Members to submit
such matters to settlement under the present Charter; but this principle shall not prejudice the
application of enforcement measures under Chapter VII."
U.N. CHARTER art. 2(7) (emphasis added).
22. See discussion infra.
23. The operation titles used here— PROVIDE COMFORT, NORTHERN WATCH, and
SOUTHERN WATCH — are those of the U.S. component of each of these combined (i.e., including
forces of more than one country) operations. Other countries may use different names. For
instance, the United Kingdom's forces enforcing the no-fly zone over northern Iraq do so as part
of Operation WARDEN. Nevertheless, since the U.S. labels are those generally used to refer to
the operations as a whole, that convention is adopted here.
24. Rick Atkinson, Crusade: The Untold Story of the Persian Gulf War 9
(1993) . See also MICHAEL R. GORDON AND BERNARD E. TRAINOR, THE GENERAL'S WAR: THE
INSIDE STORY OF THE CONFLICT IN THE GULF 446 (1995). President Bush had actually made
the first cease-fire offer on Feb. 27, 1991. It was immediately accepted by the Iraqis. JOHN N.
MOORE, CRISIS IN THE GULF: ENFORCING THE RULE OF LAW 254-5 (1992). Talks between
Iraqi and Coalition military leaders followed on Mar. 2, 1991. The next day, the Security Council
issued Resolution 686 formalizing implementation of the cease-fire at the international level.
S.C. Res. 686 (Mar. 2, 1991), U.N. Doc. S/RES/686 (1991), reprinted in 30 1.L.M. 567 (1991). In
a Mar. 3, 1991, letter from Deputy Prime Minister Tariq Aziz to the President of the Security
Council, the Iraqis agreed to accept the terms of 686. U.N. Doc. S/22320 (1991). Approximately
one month later, a much more detailed set of demands was passed as Resolution 687. S.C. Res.
687 (Apr. 3, 1991), U.N. Doc. S/RES/687 (1991), reprinted in 30 I.L.M. 843 (1991). Its terms
were grudgingly accepted by the Iraqis in letters to the Secretary General and President of the
Security Council. Letters from the Permanent Representative of Iraq to the United Nations
Addressed Respectively to the Secretary-General and the President of the Security Council,
Apr. 6, 1991, U.N. Doc. S/22456 (1991), reprinted in MOORE, supra, at 497.
25. See generally HUMAN RIGHTS WATCH, ENDLESS TORMENT: THE 1991 UPRISING IN
IRAQ AND ITS AFTERMATH (1992).
26. Not only were helicopters used, but in some cases fixed wing aircraft were employed,
despite the ban thereon, to suppress the uprisings. See George Bush, Letter to Congressional
Leaders Reporting on Iraq's Compliance with United Nation Security Council Resolutions,
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Sept. 16, 1992, at 1669.
27. For instance, in February 1991 President George Bush seemed to call for the overthrow
of Hussein when he stated, "There's another way for the bloodshed to stop, and that is for the
Iraqi military and the Iraqi people to take matters into their own hands and force Saddam
Hussein, the dictator, to step down." Ann Devroy, Wail and See on Iraq, WASH. POST, Mar. 29,
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1991, at A-15. See also John M. Goshko, Rebel Urges West to Aid Iraqi Kurds, WASH. POST, Apr.
2, 1991,atA-15.
28. S.C. Res. 688 (Apr. 15, 1991), U.N. Doc. S/RES/688 (1991).
29. President Bush announced the operation on April 5, 1991. According to Bush, it was
"designed to alleviate the plight of the many innocent Iraqis whose lives have been endangered
by the brutal and inhumane actions of the Iraqi government." George Bush, U.S. Humanitarian
Assistance to Iraqi Refugees (White House stmt., Apr. 5, 1991), reprinted in DISPATCH, Apr. 8,
1991, at 233. On Operation PROVIDE COMFORT, see John P. Cavanaugh, Operation Provide
Comfort: A Model for Future NATO Operations (May 1992) (unpublished manuscript
available through DTIC, and on file at the NWC and Army Command and General Staff
College libraries); David E Clary, Operation Provide Comfort — A Strategic Analysis (Apr.
1994) [unpublished manuscript available through DTIC, and on file at the NWC and Air War
College libraries]; Donald G. Goff, Building Coalitions for Humanitarian
Operations — OPERATION PROVIDE COMFORT ( Apr. 1992) (unpublished manuscript available
through DTIC, and on file at the NWC and Army War College libraries) .
30. The use of helicopters against the Kurds was prevalent in the North as well as the
South, and President Bush warned the Iraqis against such use in March. Dab Balz, Bush Criticizes
Iraq's Use of Helicopters on Rebels, WASH. POST, Mar. 15. 1991, at A-37. See also Rick Atkinson,
Iraq Shifts Troops to Combat Kurds, WASH. POST, Mar. 30, 1991, at A-l, A-12; Johnathan C.
Randal, Kurds' Spring of Hope Collapses Amid Feelings of Betrayal, WASH. POST, Apr. 3, 1991, at
A-l.
31. See Ann Devroy and John M. Goshko, U.S. Shift on Refugee Enclaves, WASH. POST,
Apr. 10, 1991, at A-l; John E. Yang & Ann Devroy, U.S. Seeks to Protect Kurd Refugee Areas,
WASH. POST, Apr. 11, 1991, at A-l. Though the zone did have the effect of protecting the
Kurds, it was established in part as a security measure for the Coalition forces on the ground in
northern Iraq.
32. Operation NORTHERN WATCH Command Briefing (unclassified version) (1997) (on
file with author) .
33. Id. The two Kurdish groups are the Patriotic Union of Kurdistan (PUK) and Kurdish
Democratic Party (KDP) . The Iraqis sided with the KDP in their 3 1 August attack on the PUK
stronghold of Irbil.
34. See William H. Johnson, A Piece of the Puzzle: Tactical Airpower in Operations Other
Than War (1994) (unpublished manuscript available at the NWC library), at 12.
35. Although singling out the Kurds, 688 applied generally to all Iraqis. The resolution
stated, "The Security Council . . . [glravely concerned by the repression of the Iraqi civilian
population in many parts of Iraq, including most recently in Kurdish populated areas . . . which
threaten international peace and security. . . ." S.C. Res. 688, supra note 28.
36. President William Clinton, Remarks Announcing Missile Strike on Iraq, Sept. 3. 1996,
32 WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS 1641 (1996). The response also
included two separate cruise missile attacks designed to suppress air defense facilities
(Operation, Desert Strike I & II). DoD Press Release No. 190-M,
<http://www.milnet.com/milnet/dstrike/dstrikeO.htm>. On Sept. 4, 1996, the President issued
a report to Congress in which he stated that the expansion of the southern no-fly zone was a
"reasonable response to the enhanced threat posed by Iraq." PRESIDENT WILLIAM CLINTON,
REPORT TO CONGRESS, Sept. 4, 1996.
37. Id. In the report, the President stated that the zones "were established pursuant to and
in support of United Nations Security Council Resolutions (UNSCR) 678, 687, and 688, which
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condemned Iraq's repression of its civilian population, including its Kurdish population, as a
threat to international peace and security in the region." Id.
38. S.C. Res. 678, supra note 16.
39. S.C. Res. 687 & 688, supra notes 24 & 28 respectively.
40. Specific Decisions by the London Conference, Doc. LC/C7 (Final), Aug. 27, 1992,
reprinted in 31. I.L.M. 1539 (1992). Subsequently, on September 15, 1992, measures to
implement the decisions were agreed upon by the London Conference Working Group on
Confidence and Security-Building and Verification Measures. Report of the Secretary-General
on the International Conference on the Former Yugoslavia, paras. 103-109, U.N. Doc. S/24795,
Nov. 11, 1992, reprinted in 31 I.L.M. 1549, 1574-5 (1992). See also U.N. Doc. S/24634, Oct. 8,
1992. Additionally, in a Joint Declaration, the Presidents of Croatia and the Former Republic of
Yugoslavia agreed to permit UNPROFOR observers at airfields in their countries as a
confidence-building measure. Joint Statement of 19 October 1992 Issued by Federal Republic of
Yugoslavia President Cosic and President Izetbegovic of Bosnia and Herzegovina, para. 5,
previously issued in U.N. Docs. A/47/571 & S/24702 (1992), reprinted in 31 I.L.M. 1581, 1582
(1992).
41. S.C. Res. 781 (Oct. 9, 1992), U.N. Doc. S/RES/781 (1992).
42. S.C. Res. 816 (Mar. 31, 1993), paras. 4-5, U.N. Doc. S/RES/816 (1993) (emphasis
added) .
43. "The Security Council shall, where appropriate, utilize such regional arrangements or
agencies for enforcement action under its authority. But no enforcement action shall be taken
under regional arrangements or by regional agencies without the authorization of the Security
Council. . . ." U.N. CHARTER art. 53(1). The one exception is for the purposes of collective self-
defense pursuant to Article 5 1 .
44. The effort did not prove particularly successful. As one commentator has noted, " [T] he
no-fly zone had not even been particularly successful at the tactical level. For example, there were
over 650 violations of the Bosnia-Herzegovina no-fly zone between April 1993 and January
1994. This is a direct result of a flawed operational design that allowed the Bosnian Serbs to fly
helicopters essentially unchallenged despite the helicopter's devastating firepower. The Bosnian
Serbs also continued to fly fixed-wing aircraft in strikes of their own against Bosnian and Croat
targets even after heavy retaliatory U.N. air strikes in September 1995." Shanahan, supra note 2,
at 15.
45. Dayton Peace Agreement, supra note 15, Annex 1A, Agreement on the Military
Aspects of the Peace Settlement, Art. I. For a summary of the Dayton Peace Agreement, see
Dep't of State, Fact Sheet: Summary of the General Framework Agreement, Nov. 30, 1995,
< http://www.nato.int/ifor/gfa/gfa-summ.htm> .
46. With regard to airspace, the relevant Security Council Resolution provided that under
Chapter VII it was authorizing IFOR Member States, "acting under paragraph 14 [of the
resolution] above, in accordance with Annex 1-A of the Peace Agreement, to take all necessary
measures to ensure compliance with the rules and procedures, to be established by the
Commander of IFOR, governing command and control of airspace over Bosnia and Herzegovina
with respect to all civilian and military air traffic." S.C. Res. 1031 (Dec. 15, 1995), U.N. Doc.
S/RES/1031 (1995).
47. It also included troops from Russia, Egypt, Jordan, Malaysia and Morocco. Partnership
for Peace troops were provided by Albania, Austria, Bulgaria, the Czech Republic, Estonia,
Finland, Hungary, Latvia, Lithuania, Poland, Romania, Sweden, and the Ukraine.
Background information on this topic is available in NATO, Basic Fact Sheet No. 4:
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NATO's Role in Bringing Peace to the Former Yugoslavia, March 1977,
<http://www.nato.int/docu/facts/bpfy.htm>.
48. Background information on SFOR is available at NATO, Basic Fact Sheet No. 11, The
NATO-led Stabilization Force (SFOR) in Bosnia and Herzegovina, April 1997,
<http://www.nato.int/docu/facts/sfor.htm>.
49. The zone would be a use of force against the territorial integrity of a member State in
violation of UN Charter Article 2(4). Consider the Corfu Channel case. British ships were
passing through the Corfu Channel in Albanian territorial waters when they were fired upon by
Albanian gunners. Several months later, two British warships were struck by mines (made in
Germany) within those waters. Therefore, the British sent in their minesweepers to clear the
mines, relying on the right of innocent passage. The International Court of Justice found the
Albanians liable on the basis that they knew of the mines' presence but did nothing to warn the
British warships. It also held the first passage of the warships through the channel lawful under
law of the sea principles. However, it found that the minesweeping was not innocent and,
therefore, violated Albanian sovereignty. See generally Corfu Channel (U.K. v. Alb.) 1949 I.C.J.
4. Interestingly, for separate reasons, it was the UK which was awarded damages.
50. Petersen, supra note 2, at 8.
51. Combined Task Force Public Affairs, Operation Provide Comfort Fact Sheet, July 1,
1994 (on file with author) . The fact sheet details other instances in which Coalition aircraft were
threatened, and in which a forceful response ensued.
52. Fact Sheet No. 4, supra note 47. The fact sheet details other uses offeree during the
operations in the former Yugoslavia. See also Marian Nash, U.S. Practice: Contemporary Practice
of the United States Relating to International Law (NATO Action in Bosnia), 88 AM. J. INT'L L. 5 15,
522-25 (1994).
53. Shanahan, supra note 2, at 15. The capture nearly caused the Dayton Peace Agreement
process to breakdown.
54. On the incident, see Aircraft Accident Investigation Board Report, Vol. II, Summary of
Facts (unclassified, undated) (copy on file with author).
55. Id. at 46
56. Joint Chiefs of Staff, Department of Defense Dictionary of Military and
ASSOCIATED TERMS, Joint Pub 1-02, 329 (1994). See also SROE, supra note 4, at GL-15.
57. The National Command Authorities consist of the President and Secretary of Defense
or their duly deputized alternates or successors. Joint Pub 1-02, supra note 56, at 253,
<http://www.dtic.mil/doctrine/jel/old_pubs/jpl_02.pdf>.
58. CARL VON CLAUSEWITZ, ON WAR 87 (Michael Howard & Peter Paret eds., 1984) . As
he so perceptively noted, "the political object is the goal, war is the means of reaching it, and the
means can never be considered in isolation from the purpose." Id.
59. For example, in the former case, they make execution of the relief mission free from
interference by a rogue State's aircraft and helicopters possible; in the latter, they may prevent
military actions from the air that could threaten the fragile control over an on-going conflict.
60. Similarly, consider the political consequences had SOUTHERN WATCH aircraft shot
down one of the Iraqi military helicopters transporting Haj pilgrims returning from Mecca or
engaged Iranian aircraft that penetrated the southern no-fly zone to attack the camps of Iranian
opposition groups in Iraq. Iraqi Copters Cross No-fly Zone, TORONTO STAR, Apr. 23, 1997, at
A-19; Baghdad Says Iran Bombed Exiles in Iraq, N. Y. TIMES, Sept. 30, 1997, at A-l.
6 1 . Military lawyers (judge advocates) have long played an integral role in the development
of ROE. See, e.g., Dep't of Defense Directive 5100.77, DoD Law of War Program Quly 10, 1979)
(requires the Chairman of the Joint Chiefs of Staff and Unified and Specified Command
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Michael N. Schmitt
Commanders to ensure ROE comply with the law of armed conflict); JCS Memorandum MJCS
0124-88, Implementation of DoD Law of War Program (Aug. 4, 1988) (on file with author)
(legal advisers are to review ROE for compliance with the DoD Law of War Program) . The
requirement for legal involvement in armed conflict is long-standing. See, e.g., Convention
Respecting the Laws and Customs of War on Land, Oct. 18, 1907, art. 1, 36 Stat. 2277, 205
Consol. T.S. 277 [hereinafter Hague IV] (signatories are to issue instructions to their forces on
the Convention's annex); Geneva Convention IV, supra note 6, art. 144 (Parties "undertake . . .
to disseminate the text of the present Convention as widely as possible in their respective
countries, in particular, to include the study thereof in their programmes of military and, if
possible, civil instruction. . . ."); Protocol Additional I, supra note 6, art. 82 (". . . Parties . . . shall
ensure that legal advisers are available when necessary, to advise military commanders at the
appropriate level on the application of the convention and this Protocol and on the appropriate
instruction to be given to the armed forces in this subject."). On the requirement for and role of
legal advisers, see LESLIE C. GREEN, ESSAYS ON THE MODERN LAW OF WAR 73-82 (1985).
62. Joint Pub 1-02, supra note 56, at 329 & 215 respectively.
63. "All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations." U.N. CHARTER art. 2(4).
64. The Charter of the International Military Tribunal at Nuremberg specifically
characterized "the wanton destruction of cities, towns or villages or devastation not justified by
military necessity" as a war crime. Agreement for the Prosecution and Punishment of the Major
War Criminals of the European Axis Powers and Charter of the International Military Tribunal,
Aug. 8, 1945, art. 6(b), 59 Stat. 1544, 82 U.N.T.S. 279. The offense was further clarified in The
Hostage Case:
[Military necessity] does not permit the killing of innocent inhabitants for the purpose
of revenge or the satisfaction of a lust to kill. The destruction of property to be unlawful
must be imperatively demanded by the necessities of war. Destruction as an end in itself is
a violation of international law. There must be some reasonable connection between the
destruction of property and the overcoming of the enemy forces.
The Hostage Case (U.S. v. List), 11 T.M.W.C. 759, 1253-54 (1950). Codification of the
principle is in Article 23(g) of Hague IV, which prohibits acts that "destroy or seize the enemy's
property, unless such destruction or seizure be imperatively demanded by the necessities of war."
Hague IV, Annex, Regulations Respecting the Laws and Customs of War on Land, supra note
61, art. 23(g). Though there is occasionally some discussion as to whether the article protects all
property or only State property, both the U.S. Army and the International Committee of the Red
Cross opine that it covers any property, wherever situated and however owned. See 2
DEPARTMENT OF THE ARMY, INTERNATIONAL LAW (Pamphlet No. 27-161-2) 174 (1962);
INTERNATIONAL COMMITTEE OF THE RED CROSS, COMMENTARY: GENEVA CONVENTION
RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR 301 (Jean S. Pictet
ed., 1958).
65. During an international armed conflict, the issue usually arises in the context of a target
that would be protected as a civilian object, but which in some way now contributes to the
military effort. Since the law wishes to protect civilians and civilian objects, it imposes a
requirement of directly contributing to an enemy's war effort before it will dispense with that
protection.
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66. E.g., air defense related facilities as in the case of DESERT STRIKE I & II in 1996.
Transcripts of DoD Press Briefings on Desert Strike are collected at
<http://www.defenselink.mil/iraq/brief.html>. Examples of necessity questions are,
nevertheless, imaginable. For instance, it would violate the principle of military necessity to
destroy an electrical generation station serving a city from which a shoulder-launched SAM had
been launched simply to convince the other side not to launch additional missiles. In the no-fly
context, the relationship between that act and the goal of precluding the SAM sites from
engaging enforcement aircraft is too attenuated.
67. Though the United States is not a Party to the agreement, Additional Protocol I contains
two proportionality provisions, both of which the U.S. characterizes as declaratory of customary
international law. Article 51 (5) provides that "an attack which may be expected to cause incidental
loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which
would be excessive in relation to the concrete and direct military advantage anticipated" is
disallowed as indiscriminate. Article 57(2) (b) requires an attack to be canceled or suspended if "it
becomes apparent that the objective is not a military one or is subject to special protection or that the
attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian
objects, or a combination thereof, which would be excessive in relation to the concrete and direct
military advantage anticipated." Additional Protocol I, supra note 6, arts. 51(5) & 57(2) (b)
respectively. For a summary of Protocol I and the U.S. position on key articles, see INTERNATIONAL
and Operations Law Division, Office of the Judge Advocate General, Dept of the
Air Force, Operations Law deployment Deskbook, tab 12 (n.d.). An unofficial article often
cited as accurately setting forth the U.S. position is Michael J. Matheson, Session One: The United
States Position on the Relation of Customary International Law to the 1 977 Protocols Additional to the 1 949
Geneva Conventions, 2 AM. U. J. INT'L L & POLT 419 (1987).
68. The area (measured in range and altitude) in which targets can be effectively engaged
and destroyed.
69. The advantage calculation would shift if such violations occurred because the overall
effectiveness of the zone would diminish. Thus, even under the principle of proportionality,
downing subsequent similar violators following adequate warning might be justifiable.
70. As noted in the Nuclear Weapons case, " [The] prohibition of the use of force is to be
considered in the light of other relevant provisions of the Charter. In Article 51, the Charter
recognizes the inherent right of individual self-defense if an armed attack occurs. A further lawful
use offeree is envisaged in Article 42, whereby the Security Council may take military enforcement
measures in conformity with Chapter VII of the Charter." International Court of Justice, Legality
of the Threat or Use of Nuclear Weapons, General List No. 95, July 8, 1996, para. 41,35 I.L.M. 814
(1996) [hereinafter Nuclear Weapons] . This point must not be carried to an extreme, for the Court
was speaking to the issue of the resort to force, vice methods used to employ force. On the case, see
Michael N. Schmitt, The International Court of Justice and the Use of Nuclear Weapons, 7 USAFA J.
LEG. STU. 57 (1997) (and NAV. WAR C. REV., Spring 1998, at 91).
71. The listing of sources found in Article 38 of the Statute of the International Court of
Justice is generally recognized as being set forth in priority order. It provides:
1. The Court . . . shall apply:
(a) international conventions, whether general or particular, establishing rules expressly
recognized by the consenting States;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognized by civilized nations;
(d) subject to the provisions of Article 59, judicial decisions and teachings of the most
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highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.
Statute of the International Court of Justice, art. 38(1), June 26, 1945, 59 Stat. 1055, T.S. 993, 3
Bevans 1179.
72. U.N. CHARTER art. 103. The International Court of Justice has in fact noted the
primacy of Security Council actions. In the Lockerbie case, the Court declined to indicate
provisional measures requested by Libya on the basis that Charter obligations prevail over those
in other agreements such as the Montreal Convention. The Charter obligations were contained
in Resolution 748 (1992), which cited Chapter VII as its basis. The holding of the Court
illustrates the degree to which Council actions are determinative: "Whereas both Libya and the
United States, as Members of the United Nations, are obliged to accept and carry out the
decisions of the Security Council in accordance with Article 25 of the Charter; whereas the
Court, which is at the stage of proceedings on provisional measures, considers that prima facie
this obligation extends to the decision contained in resolution 748 (1992); and whereas, in
accordance with Article 103 of the Charter, the obligations of the Parties in that respect prevail
over their obligations under any other international agreement, including the Montreal
Convention " Questions of Interpretation and Application of the 1971 Montreal Convention
Arising from the Aerial Incident at Lockerbie, (Libya v. U.S.) 1992 I.C.J. , para. 39, 3 1 1.L.M. 662
(1992). In The Prosecutor v. Dusko Tadic, Case No. IT-94-1-AR72, Appeals Chamber,
International Criminal Tribunal for the Former Yugoslavia, Decision on the Defense Motion for
Interlocutory Appeal on Jurisdiction, para. 31, Oct. 2, 1995, 31 I.L.M. 32 (1996), the court
rejected claims that the Security Council establishment of the Tribunal based on Chapter VII of
the Charter was inappropriate. In particular, it stated that "the Security Council has a broad
discretion in deciding on the course of action and evaluating the appropriateness of the measures
to be taken." It declined even to consider the question of legality.
73. The Vienna Convention on the Law of Treaties describes the norm, using the label
"peremptory," as follows: "Art. 53. A treaty is void if, at the time of its conclusion, it conflicts
with a peremptory norm of general international law. For the purposes of the present
Convention, a peremptory norm of general international law is a norm accepted and recognized
by the international community of States as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general international law
having the same character." Vienna Convention on the Law of Treaties, U.N. Doc. A/CONF.
39/27 (1969), 63 AM.J.lNT'LL.875 (1969), 8 I.L.M. 679 (1969). It should be noted that Article
64 of the Convention provides that "if a new peremptory norm of general international law of the
kind referred to in Article 53 emerges, any existing treaty which is in conflict with that norm
becomes void and terminates." Id. art., 64.
74. The entire issue of jus cogens norms is controversial. Indeed, in North Sea Continental
Shelf, 1969 I.C.J. 4, 42, the International Court of Justice noted that it was not "attempting to
enter into, still less pronounce on any question of jus cogens. " In fact, there have been no cases in
which a treaty provision, or implementation thereof, has been determined violative of a jus
cogens norm. For conflicting views on the existence of jus cogens norms, see LAURI
Hannikainen, Peremptory Norms in International Law: Historical Development,
Criteria, Present Status (1988) and Jerzy Sztucki, Jus Cogens and The Vienna
Convention on the Law of Treaties: A Critical Appraisal (1974).
75. On the distinction between international and non-international armed conflict, see
GREEN, supra note 6, at 52-66; MALCOLM N. SHAW, INTERNATIONAL LAW 815-821 (4th ed.
1997).
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76. The SROE guidance on the subject is as follows: "U.S. forces will always comply with
the Law of Armed Conflict. However, not all situations involving the use of force are armed
conflicts under international law. Those approving operational rules of engagement must
determine if the internationally recognized Law of Armed Conflict applies. In those
circumstances when armed conflict, under international law, does not exist, Law of Armed
Conflict principles may nevertheless be applied as a matter of national policy. If armed conflict
occurs, the actions of U.S. forces will be governed by both the Law of Armed Conflict and rules of
engagement." SROE, supra note 4, at A-2 to A-3. The UN position is that the Law of Armed
Conflict as articulated in the primary conventions (1949 Geneva Conventions, Protocols
Additional, and the Cultural Property Convention) should apply in all peace operations. Draft
Model Agreement Between the United Nations and Member States Contributing Personnel and
Equipment to the United Nations Peacekeeping Operations, Report of the Secretary General
(May 23, 1991), U.N. Doc. A/46/185, reprinted in UN PEACE OPERATIONS (Walter G. Sharp
ed., 1995). The difficulty of determining the status of an armed conflict is illustrated by the case
of the former Yugoslavia. Seemingly contradictory conclusions on the subject have been reached
by the International Criminal Tribunal for the Former Yugoslavia. Compare Prosecutor v.
Drazen Erdomovic, Case No. IT-96-22-A, Appeals Chamber Judgment, Oct. 7, 1997 (finding
an international conflict vis-a-vis the Bosnian Croats) with Prosecutor v. Dusko Tadic, Case No.
IT-94-1-T, Opinion and Judgment, May 7, 1997. On these cases, see Leslie C. Green,
Erdemovic-Tadic-Dokmanovic: Jurisdiction and Early Practice of the Yugoslav War Crimes
Tribunal (unpublished manuscript on file with author, forthcoming in LESLIE C. GREEN,
Further Essays on the Modern Law of War, Transnational Pub.).
77. As has been pointed out by others, ROE can also be viewed as a crisis management tool
for commanders that allows them, when unable to be present personally, to exercise positive
control over their forces during stressful situations. Viewed thusly, ROE do not so much limit a
commander's courses of action, as they frame them. On the point, e.g., see Douglas C. Palmer,
Rules of Engagement as an Operational Tool 1-3 (Feb. 22, 1993) (unpublished manuscript on
file at NWC library).
78. There is evidence that fear of prosecution in the event the ROE are violated has also
contributed to hesitation to act in self-defense. In February 1993, Army Specialist James Mowris
and his platoon were on patrol in a Somali village when they saw two men running in an adjacent
military area that was abandoned. Mowris chased them and, by his account, fired a warning shot
into the ground to convince them to stop. One of the Somalis was killed. Mowris was
subsequently convicted of negligent homicide in a trial that suggested the ROE on the use of
force were poorly understood by the soldiers. The court-martial convening authority
subsequently decided to set aside the conviction. Mark S. Martins, Rules of Engagement for Land
Forces: A Matter of Training, Not Lawyering, 143 MIL. L. REV. 1, 17, 66 (1994). Apparently, one
consequence of the prosecution was that soldiers in Somalia "were reluctant to fire even when
fired upon for fear of legal action. It took weeks to work through this. . . . There is no doubt that
this case had a major effect on the theatre." Letter from Colonel Wade H. McManus, Jr.,
Commander, Division Support Command, to Major General Guy A.J. LaBoa, Subject: Specialist
James D. Mowris (Sept. 28, 1993), reprinted in I Record of Trial, U.S. v. Mowris, GCM No. 68
(Fort Carson & 4th Inf. Div., July 1, 1993), cited in id. at 66.
79. The principle requires belligerents to distinguish between valid military targets and
civilians and civilian objects. It is codified in Protocol I Additional, supra note 4, art. 5 1 (4 & 5) .
80. Deterrence, properly understood, is the product of the will and capacity perceived by
the subject of the deterrent action.
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Michael N. Schmitt
81. The classic example of failure to adequately do so is the bombing of the Marine
Headquarters at Beirut International Airport in October 1983. In that case, the ROE failed to
account for an increase in the terrorist threat, as evidenced by the earlier bombing of the U.S.
Embassy. Dep't of Defense, Report of the Commission on the Beirut International Airport
Terrorist Act, October 23, 1983 (Dec. 20, 1983); various lectures by Professor Richard J.
Grunawalt, Legal Counsel to the Commission, Naval War College, 1995-97.
82. In aerial operations, "operator" is a term of art for a flyer. It is absolutely essential that
the judge advocate have a basic understanding of operational concepts and weapons system
capabilities. For a survey of these matters, see Robert A. Coe & Michael N. Schmitt, Fighter Ops
for Shoe Clerks, 42 A.F.L. REV. 49 (1997).
83. Recall, for instance, that Iraqi military helicopters penetrated the southern no-fly zone
over Iraq to pick up pilgrims returning from the Haj. With regard to the decision not to engage
the helicopters, DoD spokesman Kevin Bacon stated, "We are not prepared to stop what appear
to be small-scale and humanitarian operations." Iraqi Copters Cross No- fly Zone, TORONTO
STAR, Apr. 23, 1997, at A-19.
84. A "combined operation" is "(a)n operation conducted by forces of two or more allied
nations acting together for the accomplishment of a single mission." Joint Pub 1-02, supra note
56, at 77.
85. For a superb discussion of the right to self-defense in international law, see YORAM
Dinstein, War, Aggression, and Self Defence 175-308 (2d ed. 1994).
86. The hierarchy of self-defense is based in part on that set forth in the SROE. SROE,
supra note 4, at A-4 to A-5. The SROE describe collective self-defense as a subset of national
self-defense, and individual self-defense as a lesser included form of unit self-defense. It is
probably more useful to think of them as separate entities that operate quite differently in
differing contexts.
87. Id. at A-6.
88. This was made clear in the Nuclear Weapons case. There the International Court of
Justice stated: "The submission of the exercise of the right of self-defense to the conditions of
necessity and proportionality is a rule of customary international law. As the Court stated in the
case concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United
States of America) (I.C.J. Reports 1986, p. 94, para. 176): 'there is a specific rule whereby
self-defense would warrant only measures which are proportional to the armed attack and
necessary to respond to it, a rule well-established in customary international law.' This dual
condition applies equally to Article 51 of the Charter, whatever the means of force employed."
Nuclear Weapons, supra note 70, at para. 41.
89. SROE, supra note 4, at A-6.
90. An act in self-defense must comport with both the elements of self-defense and the jus
in hello. Nuclear Weapons case, supra note 70, at para. 42.
91. Id.
92. SROE, supra note 4, at GL-9.
93. Id.
94. 0( course, ROE are always contextual. If a similar aircraft employing identical tactics
approached the no-fly-zone boundary the previous day and attacked an enforcement aircraft, the
threshold for engaging on this day would certainly be lower.
95. The MiG-25 downed by the SOUTHERN WATCH F-16 in December 1993 was likely
testing U.S. resolve to enforce the zone. Petersen, supra note 2, at 8; William Matthews,
Coverage of Iraqi No-fly Zone Increases, A. F. TIMES, Jan. 11, 1993, at 4.
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96. The SROE cite four factors without amplification: 1) the state of international/regional
political tension; 2) military preparations; 3) intelligence; and 4) indications and warning
information. SROE, supra note 4, at GL-9.
97. This is likely to be the case, e.g., in the event of a mistaken enforcement action, such as
the Black Hawk shootdowns. Another example of a period posing such a risk was during the Iraqi
involvement in the Kurdish in-fighting, the shift from Operation PROVIDE COMFORT to
NORTHERN WATCH, and the resulting pullout of French forces.
98. A SAMbush occurs when a SAM system "ambushes" an enforcement aircraft. For
example, a mobile SAM system could be placed in a hidden location near the no-fly boundary. A
"bait" aircraft might then fly quickly towards the line knowing this will cause the enforcement
aircraft to maneuver into a position to engage the potential violator that is within range of the
hidden SAM site. This is but one possible SAMbush scenario.
99. Stand-downs are used to prepare the aircraft, plan, and ensure adequate rest for
aircrews prior to combat.
100. Chaff consists of metallic filaments released by the aircraft to disrupt ground-based
radar by creating returns that effectively "cloud" it over. Flares are dropped to disrupt
heat-seeking missiles. See Coe & Schmitt, supra note 82, at 81.
101. If so, not only does this lower the likelihood of the act constituting hostile intent, it
allows the aircrew greater time to make the hostile intent determination.
102. That said, operators will typically look to the judge advocate to do so, pointing out the
difficulty of making a complex determination in the mere seconds available in the cockpit.
Self-defense being a legal standard, operators expect the judge advocate to determine which acts
meet it. The temptation to do so must be resisted, for such a list places both national policy and
aircrews at risk. The list will inevitably tend to be viewed as exclusive.
103. The SROE language is as follows: "Commanders should use all available information to
determine hostile intent. Intelligence, politico-military factors, and technological capabilities
require a commander to consider a wide range of criteria in determining the existence of hostile
intent. No list of indicators can substitute for the commander's judgment. The following
guidance is not meant to be a 'checklist' but rather examples which taken alone or in
combination might lead a commander to determine that a force is evidencing hostile intent.
Among the actions that might lead to a reasonable belief that hostile intent exists are. . . ."
SROE, supra note 4, at A-B-l. Though this particular caveat is for seaborne forces, a similarly
worded proviso would be appropriate for aerial operations.
104. For a discussion of this issue, see George Bunn, International Law and the Use of Force in
Peacetime: Do U.S. Ships Have to Take the First Hit? NAVAL WAR C. REV., May-June 1986, at 69.
The concern that political pressure will require excessive risk-taking is not new. During the
Falklands Campaign, the Commander of the Falklands Battle Group was worried that "political
requirements could result in our entering [the exclusion zone around the Falklands declared by
the British] with our hands tied behind out backs. I thought it was all too possible that I was going
to be told again, 'The enemy must fire the first shot.' " He was worried that his political masters
would want the United Kingdom to appear the "wronged party." SANDY WOODWARD, ONE
HUNDRED DAYS: THE MEMOIRS OF THE FALKLANDS BATTLE GROUP COMMANDER 108
(1992). Admiral Woodward's concern appears well founded. In a joint U.S. Naval War College
and UK Royal Naval Staff College seminar held in October 1996, the British position was that
"UK ROE will normally accept the risk of first hit, i.e., do not fire unless fired on." Royal Navy
Staff College Background Paper, ROE. Political Tool or Military Nightmare? (undated, n.p., on
file with author).
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Michael N. Schmitt
105. Professor Dinstein adopts the terminology "interceptive" self-defense. It occurs after
the other side has "committed itself to an armed attack in an ostensibly irrevocable way." He
argues that interceptive self-defense is consistent with Article 51. DINSTEIN, supra note 85, at
190.
106. Letter from Daniel Webster to Lord Ashburton (Aug. 6, 1842), reprinted in JOHN
BASSETT MOORE, 2 A DIGEST OF INTERNATIONAL LAW 411, 412 (emphasis added). The
Caroline incident involved a Canadian insurrection in 1837. After being defeated, the insurgents
retreated into the United States where they recruited and planned further operations. The
Caroline was being used by the rebels. British troops crossed the border and destroyed the
Caroline by setting fire to the vessel and sending her over Niagara Falls. Britain justified the
action on the grounds that the United States was not enforcing its laws along the frontier and
that the action was a legitimate exercise of self-defense. 2 DIGEST, supra, at 409-11.
107. International Military Tribunal (Nuremberg) , Judgment and Sentence, 41 AM. J. INT'L
L. 172, 205 (1947). The German leaders tried to justify the invasion of Norway as self-defense
against an anticipated British attack from Norway.
108. Along these same lines, it is occasionally asked whether an aircraft must "call home" to
seek authority to act in self-defense. The SROE do require that the threatened aircraft call home
if time permits. However, if there is time to radio to the air operations center (AOC) for
instructions, usually the threat is not imminent. The crew may seek general guidance (or even
authority to engage under the mission accomplishment rules), but in most cases it may not
engage in self-defense until there is no longer time to call home — until the need is "instant and
overwhelming." Simply put, the imminency requirement is that an enforcement aircraft may not
act in self-defense until it has to, but it need not necessarily wait until the hostile intent is about
to become a hostile act.
109. Of course, though the right to self-defense is no longer operative, it cannot be
overemphasized that mission accomplishment ROE may provide a separate and distinct
authorization to engage.
110. Note that a "clear and unambiguous" breaking off of the engagement will be difficult to
discern. Therefore, it is tactically sound and legally acceptable to continue the fight until
convinced it is over.
111. It would also appear to conflict with the general approach to surrender of aircraft during
armed conflict, i.e., that surrenders are seldom accepted in aerial combat because of the difficulty
of verifying true status. DEPT OF THE AIR FORCE, INTERNATIONAL LAW— THE CONDUCT OF
Armed Conflict and Air Operations (AFP 110-31), para. 4-2d (1976).
112. Such missions are labeled SEAD — suppression of enemy air defenses. When the sites
are actually destroyed, vice simply suppressed for a period sufficient to allow friendly aircraft to
transit the area, SEAD is sometimes labeled DEAD — destruction of enemy air defenses. See Coe
& Schmitt, supra note 82, at 53. It is important to understand that tactics are situation specific. If
the aircraft being threatened is armed with a HARM, a missile specifically designed to home in
on a target's radar emission (and thus very useful against SAM sites), then the best course of
action may well be to attack immediately. For this reason, it may be prudent to send a HARM
"shooter" into the WEZ first to determine whether the SAM site is likely to act aggressively.
Descriptions of air-to-ground weapons are found in id. at 67-70.
113. This is a particular problem for reconnaissance missions. No-fly zone or associated
operations generally have a reconnaissance component to allow the task force to remain
apprised of the threat to enforcement aircraft. Unfortunately, tactical reconnaissance aircraft
usually must fly within the WEZ of the site it is imaging to secure photos that are of sufficient
clarity for use in identifying threats. Thus, such aircraft cannot simply fly around or above
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ground-based threat systems.
It should be pointed out, in this regard, that the U.S. definition of self-defense does allow a
reaction to hostile acts intended to impede the mission. Illumination with fire control radar,
however, is a demonstration of hostile intent, not a hostile act, and the hostile intent provision
does not extend to impeding mission accomplishment. Moreover, as a matter of international
law vice national policy, acting in response to an effort to impede the mission is more an act of
self -help than of self-defense, though the use of force as a means of self-help under the Charter
regime is controversial. See VON GHLAHN, supra note 6, at 633-62. On self-help in a peacetime
context, see Corfu Channel, supra note 49.
114. This possibly became somewhat of a reality in Operation DENY FLIGHT. NATO
commanders wanted to attack SAM sites in Bosnia-Herzegovina that threatened enforcement
aircraft. The UN disapproved the proposal out of fear that the action might result in retaliation
against UNPROFOR troops on the ground. As a result, NATO aircraft enforcing the ban were
required to fly outside the WEZs of known sites. Steven Watkins, Does Deny Flight Still Work?
A. F. TIMES, July 24, 1995, at 3. In this case, operational concerns gave way in the face of greater
UN policy implementation.
115. One must be careful about black and white characterizations of lawfulness. The
determination of actual necessity will be made in the cockpit based on the aircrew's subjective
judgment.
116. SROE, supra note 4, at A-5.
117. For instance, the IFOR (ground) ROE guidelines on opening fire provided, "You may
only open fire against a person if he/she is committing or about to commit an act LIKELY TO
ENDANGER LIFE, AND THERE IS NO OTHER WAY TO STOP THE HOSTILE ACT" (emphasis in
original). Force Commander's Policy Directive Number 13, Rules of Engagement, Part I: Ground
Forces, July 19, 1993, reprinted in Bruce D. Berkowitz, Rules of Engagement for U.N. Peacekeeping
Forces in Bosnia, ORBIS, Fall 1994, at 635, 643.
118. This does not mean that an attack on the country's air defense system would be illegal.
It simply means that it would not be justifiable under the principle of self-defense. This point
emphasizes the fact that actions during no-fly operations, other than in self-defense, are
essentially political in nature.
119. Care must be taken not to read this principle too liberally. It is not a justification for
risking the downed survivor. Uncertainty should always be resolved in favor of protecting the
crew member or other assets involved in the CSAR effort.
120. SROE, supra note 4, at A-5.
121. Id. atGL-10.
122. See. e.g., The Hostage Case (U.S. v. List), 11 T.W.C. 759 (1950) (acquitting general
who had ordered destruction during German evacuation of Norway on basis that destruction was
necessary due to general's mistaken belief that Soviets were pursuing his forces). For an example
of such an evaluation in the context of state-sponsored assassination, see Michael N. Schmitt,
State-Sponsored Assassination in International and Domestic Law, 17 YALE J. INT'L L. 609, 648-650
(1992).
123. For an excellent article on ground forces ROE and training, which contains many
principles that can be applied to the aerial environment by analogy, see Martin, supra note 78.
124. The SROE includes the following provision repeatedly throughout the document.
"These rules do not limit a commander's inherent authority and obligation to use all necessary-
means available and to take all appropriate action in self-defense of the commander's unit and
other U.S. forces in the vicinity." See e.g., SROE, supra note 4, at A-3.
125. The relevant provisions of the SROE are as follows:
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Michael N. Schmitt
(1) U.S. forces assigned to the OPCON [operational control] of a multinational force
will follow the ROE of the multinational force unless otherwise directed by the NCA. US
forces will be assigned and remain OPCON to a multinational force only if the combatant
commander and higher authority determine that the ROE for that multinational force are
consistent with the policy guidance on unit self-defense and with the rules for individual
self-defense contained in this document.
(2) When U.S. forces, under US OPCON, operate in conjunction with a
multinational force, reasonable efforts will be made to effect common ROE. If such ROE
cannot be established, U.S. forces will exercise the right and obligation of self-defense
contained in this document while seeking guidance from the appropriate combatant
command. To avoid mutual interference, the multinational force will be informed prior to
U.S. participation in the operation of the U.S. forces' intentions to operate under these
SROE and to exercise unit self-defense.
Id. at A-l. The need to seek common ROE extends beyond multinational concerns to the
consistency of ROE as between U.S. forces. On at least two occasions, different sets of ROE
applicable to U.S. forces have not been consistent. During operations in Somalia in 1994, there
was a point at which U.S. snipers had more restrictive ROE than those assigned to UNOSOM II
(United Nations Operations in Somalia II). This was the result of an incident in which a U.S.
sniper acting in compliance with the ROE killed a Somali in the back of a truck armed with a
crew-served weapon that was approaching a U.S. compound. Soon thereafter, Somalis appeared
charging that he had shot a pregnant woman. In the ensuing brouhaha, the U.S. JTF changed its
rules on snipers, while UNOSOM did not. See F.M. Lorenz, Rules of Engagement in Somalia: Were
they Effective? 42 NAVAL L. REV. 62, 69-72 (1995). The second incident occurred during
Operation JOINT ENDEAVOR. When the operation commenced, some U.S. forces involved were
assigned to IFOR, while others were not. The former applied NATO ROE; non-IFOR troops
were governed by U.S. ROE, including the SROE. NATO ROE were eventually made applicable
to all U.S. forces in the Area of Responsibility (AOR). Letter from Headquarters, European
Command to Commandant (sic), Naval War College, Subj: Lessons Learned from Operation
JOINT ENDEAVOR, June 28, 1996, USAFE/JA Joint Universal Lessons Learned QULL) (n.p.)
(on file with author) .
126. SROE, supra note 4. On the SROE generally, see Grunawalt, supra note 4.
127. The previous rules primarily governed operations during peacetime. The decision was
made that this approach had the potential for creating confusion in the transition from peace to
war. Therefore, the current iteration was designed to apply regardless of the state of conflict. The
1988 Peacetime Rules of Engagement were promulgated by Memorandum from Secretary of the
Joint Staff for Unified and Specified Combatant Commanders and Commander U.S. Element,
NORAD, Peacetime Rules of Engagement for U.S. Forces (Oct 28, 1988) (on file with Oceans
Law and Policy Dep't, Naval War College). The current ROE provide: "These ROE apply to
U.S. forces during all military operations and contingencies. Except as augmented by
supplemental ROE for specific operations, missions, or projects, the policies and procedures
established herein remain in effect until rescinded." Chairman of the Joint Chiefs of Staff
Instruction (CJCSI 3121.01), CJCS Cover Letter (the Instruction itself), Oct. 1, 1994, at para 3.
The SROE do not apply when military forces are assisting federal and local authorities during a
civil disturbance or disaster. Id. at A-2.
128. Unless, of course, there are combined rules of engagement for the particular operation
with which all contributing States must comply. In such cases, the combined operation's rules
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supplant the SROE for the purposes of that operation. As noted above, though, the U.S. will not
be bound by such rules unless they are consistent with the U.S. position on self-defense.
129. Though much of the enclosure is classified, the first eight pages contain general
information on self-defense that is not. This section can be used as a strawman for the
development of coalition self-defense ROE.
130. The Combatant Commands are established in 10 U.S.C. 164. In layman's terms, they
are the broadest military organizations which employ combat forces. Combatant commands
report directly to the NCA (President and Secretary of Defense) . They may be organized either
geographically or functionally. The five geographic commands are Atlantic Command (primarily
continental U.S.), European Command, Pacific Command, Central Command (Middle East),
and Southern Command (Latin America). The functional commands are Strategic Command,
Transportation Command, Special Operations Command, and Space Command. On command
relationships, see Joint Chiefs of Staff, Unified Action Armed Forces (Joint Publication 0-2),
Feb. 24, 1995.
131. For instance, NORTHERN WATCH is a European Command operation, whereas
SOUTHERN WATCH falls under the control of Central Command. Only Central Command,
Pacific Command, and Southern Command have issued ROE of their own.
132. Drawing on a naval example, some States define disabling fire as firing into the rudder,
whereas others define it as firing into the bridge. Similarly, warning shots at sea are variously
described as firing across the bow, firing into the funnel, and raking the bridge.
133. The planning and execution process for U.S. military operations is described in JOINT
Chiefs of Staff, Doctrine for Planning Joint Operations Qoint Pub. 5-0), April 23,
1995.
134. The bombing of the Marine Barracks in Beirut in 1983 is the generally cited example of
failure in this regard. The Commission found that the "ROE contributed to a mind-set that
detracted from the readiness of the [Marines] to respond to the terrorist threat which
materialized on 23 October 1983." Commission Report, supra note 81, at 135.
135. E.g., the missile may not have the range of the radar associated with the SAM system.
136. This rather black and white assertion must be tempered by operational prudence. For
instance, intelligence sources may indicate a missile has a certain range, but it may, in fact, have
a greater range than advertised or previously witnessed.
137. Radars operate in various modes. In the acquisition mode, they simply search the sky for
targets. In the target tracking (fire control) mode, they are locked on to and follow a particular
target in preparation for launch. In missile guidance mode, radar guides a missile that has been
launched to target. Whether or not the functions are distinct (and distinguishable by aircraft)
depends on the radar system. For example, the phased array radar on an Aegis cruiser performs
all three functions.
138. The guidance can take multiple forms. In Operation NORTHERN WATCH, e.g., it is in a
booklet entitled the Commander's Guidance on the Application of the Rules of Engagement,
which is one part of an overall set of guidance labeled the Consolidated Operating Standards. In
SOUTHERN WATCH, by contrast, the guidance is contained in a Special Instruction (SPIN)
issued by the JTF Commander.
139. For example, by employing the technique of illuminating aircraft with SAM system fire
control radars discussed supra in the section on self-defense.
140. The mission is performed by the U.N. Special Commission (UNSCOM).
141. This need is compounded by the distribution of similar aircraft in the air forces of many
States. For instance, during DESERT STORM, both Iraq and members of the Coalition flew
French-made Mirages and Soviet-built MiGs.
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142. Over the course of the last fifty years, there have been a number of incidents in which
military aircraft were downed during peacetime operations. For instance, in 1952 and 1954,
Soviet aircraft shot down B-29s over Japan, in 1953 a USAF F-84 was downed by Czech fighters,
and the Soviets shot down a U.S. Navy P-2 in 1959. In each case, international condemnation
focused on the fact that the aircraft had inadvertently, vice intentionally, violated foreign
airspace. However, when a U-2 was shot down by the Soviets over Soviet territory in 1960 there
was a relative lack of condemnation. These incidents would tend to support the contention that
it is intent of the downed aircraft that will drive international assessments of legality. In the case
of a no-fly zone, the intent of a combat aircraft to violate an internationally "sanctioned"
prohibition approaches res ipsa loquitor status. On the incidents, and the reaction thereto, see
1956 I.C.J. Pleadings, Aerial Incident of Oct. 7, 1952 (U.S. v. U.S.S.R.); 1959 I.C.J. Pleadings,
Aerial Incident of Nov. 7, 1954 (U.S. v. U.S.S.R.) ; 1956 I.C.J. Pleadings, Aerial Incident of Mar.
10, 1953 (U.S. v. Czech); 1958 I.C.J. Pleadings, Aerial Incident of Sept. 4, 1954 (U.S. v.
U.S.S.R.); Schmitt, Aerial Blockades, supra note 7, at 51-52.
143. One hundred six deaths resulted. KAL 007 was certainly not the first incident of a civil
airliner being downed. In 1954 the Chinese shot down a Cathay Pacific airliner which they
mistakenly believed to be a Nationalist Chinese military aircraft. Keesings Contemporary
Archives 13733 (1954). Other incidents of downing civil airliners include downings of: an Air
France airliner over Berlin in 1952; an El Al airliner in 1955 by Bulgaria; a Libyan airliner by the
Israelis over the Sinai Peninsula in 1973; and the forced landing of a Korean Air Lines aircraft in
1983 by the Soviets. See Schmitt, Aerial Blockades, supra note 7, at 52. See also Bin Cheng, The
Destruction of KAL Flight KE007, and Article 3 Bis of the Chicago Convention, in AIRWORTHY:
Liber Amicorum Honouring Professor Dr. I.H. Ph. Dierdericks-verschoor 49, 55
(J.W.E. Storm van Gravesande & A. van der Veen Vonk eds., 1985); Craig A. Morgan, The
Shooting of Korean Airlines Flight 007: Responses to Unauthorized Intrusions, in INTERNATIONAL
INCIDENTS: THE LAW THAT COUNTS IN WORLD POLITICS 202, 204-210 (W. Michael
Reisman & Andrew Willard eds., 1988); and John T. Phelps, Aerial Intrusions by Civil and
Military Aircraft in Time of Peace, 107 MIL. L. REV. 255, 266-274 (1985).
144. The text of the draft resolution (S/15966/Rev. 1) is reprinted at 22 I.L.M. 1 148 (1983) .
Poland also voted against the resolution, and the P.R.C., Guyana, Nicaragua, and Zimbabwe
abstained. U.N. Doc. S/PV.2476 (1983), reprinted in 22 I.L.M. 1138, 1144 (1983).
145. ICAO Council Resolution, Sept. 16, 1983, 22 I.L.M. 1150 (1983).
146. ICAO Council Resolution, Mar. 6, 1984, 23 I.L.M. 937 (1984).
147. Protocol Relating to an Amendment to the Convention on International Civil
Aviation (Article 3 bis), May 10, 1984, reprinted in 23 I.L.M. 707 (1984).
148. Use of the term "recognize," in light of rules of interpretation, would suggest it was
intended to be declaratory For a discussion of Article 3 bis, see Cheng, supra note 143, at 60-61;
Gerald F. Fitzgerald, The Use of Force Against Civil Aircraft: The Aftermath of the KAL 007
Incident, 1984 CAN. Y.B. INTL L. 291; Michael Milde, The Chicago Convention After 40 Years, 9
Annals of Air & Space Law 119 (1984).
149. Convention on International Civil Aviation (Chicago Convention), Dec. 7, 1944,
annex 2 (Rules of the Air), 15 U.N.T.S. 295, T.I.A.S. No. 1591, 61 Stat. (2) 1 180, 3 Bevans 944,
reprinted in 22 I.L.M. 1154 (1983). See also, Schmitt, Aerial Blockades, supra note 7, at 56-64.
150. The F— 15 pilots misidentified the Black Hawks as Iraqi Mi-24 Hinds during their visual
identification. See Aircraft Accident Investigation Board Report, Executive Summary, Vol. I
(May 27, 1994) at para. 3 (on file with author).
151. Legally, it does not matter where the level is set, so long as the execution of the
engagement, and the criteria therefore, are appropriate. Of course, the system of authorization
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cannot be so complex that it fails to function effectively. It has been argued that during DENY
FLIGHT, the requirement to secure both NATO and UN approval for the use of force (in mission
accomplishment) frustrated accomplishment of the mission. The problem was not that of
connectivity (i.e., technology for communications), but rather unwieldy and slow
decision-making. See Brian G. Gawne, Dual Key Command and Control in Operation Deny
Flight: Paralyzed by Design (Nov. 1996) (unpublished manuscript on file at NWC library).
152. For instance, in the case of the four Galebs shot down by NATO fighters in 1994, they
were first warned by NATO AW ACS monitoring the area. They then were warned off by the
fighters. After these warnings went unheeded, the fighters had to secure authority from the
NATO Combined Air Operations Center before they could engage the violators. Nash, supra
note 52, at 524.
153. On the threats, see Containing Saddam, THE ECONOMIST, Nov. 15, 1997, at 16; Saddam
v. the UN, Continued, THE ECONOMIST, Nov. 15, 1997, at 43.
154. For example, if operations are run out of a base in country X, can country X's aircraft be
defended even if they are engaged in operations wholly unrelated to the no-fly enforcement
operation? The default answer is no, absent authorization to the contrary.
155. E.g., do the ROE permit forces to cross a border in order to effectively defend X's
aircraft?
156. Nicaragua Case, supra note 20, at 104-5.
157. Of course, this begs the policy question of why U.S. forces should place themselves at
risk in circumstances in which a State's own forces would not do so.
158. The classic example is cross-border operations during Operations PROVIDE COMFORT
and NORTHERN WATCH against Kurds using northern Iraq as a sanctuary in their war against
the Turks. Turkey is also at odds on a recurring basis with Syria.
159. Trail Smelter was a case involving a smelter that was discharging sulfur dioxide near
Trail, British Columbia. The United States alleged that the sulfur dioxide drifted over parts of
Washington. The arbitration tribunal held for the United States on the ground that countries
have a duty not to use, or allow the use of, their territory for activities harmful to another State.
Trail Smelter (U.S. v. Can.) 3 R.I.A.A. 1911, 1965 (1941).
160. See AFP 110-31, supra note 111, at para. 2-5; DEPT OF THE NAVY, THE
COMMANDER'S HANDBOOK ON THE LAW OF NAVAL OPERATIONS (NWP 1-14M), para.
2.5.1 (1995). Note, e.g., that in the law of the sea there is a right to innocent passage through the
territorial sea. No such right exists in the airspace. NWP 1-14M, id. at para. 2.5.1.
161. For an excellent discussion of aerial hot pursuit, see N.M. POULANTZAS, THE RIGHT
of Hot Pursuit in International Law 271-352 (1969). Roach cites a form of pursuit
labeled "self-defense pursuit," distinguishing it from the hot pursuit of the law of the sea. Roach,
supra note 4, at 50. Self-defense pursuit would certainly be appropriate in the aerial
environment; however, because of the speeds involved, it would be less a pursuit than merely an
ongoing engagement.
162. Poulantzas describes incidents of pursuit during armed conflicts not amounting to war,
rejecting the contention that a right to enter a 3rd State's territory exists absent consent.
POULANTZAS, supra note 161, at 329-338.
163. Note that the State would be obligated to act to keep its territory from becoming a
sanctuary by virtue of Article 2(5) of the Charter. That article provides that "(a) 11 Members . . .
shall refrain from giving assistance to any state against which the United Nations is taking
preventive or enforcement action." U.N. CHARTER art. 2(5).
164. The classic case on sanctuary in the law of armed conflict involves the Altmark, a
German naval auxiliary vessel during the Second World War. In 1940, the Altmark transited
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Michael N. Schmitt
Norwegian territorial waters carrying British prisoners. Permission to transit had been granted by
the Norwegians, who had also refused British requests that the vessel be searched for prisoners.
After the Altmark had passed through nearly 400 miles of Norwegian waters, a British destroyer
entered the waters and released the prisoners. The British justified their action in part on the
basis that the German vessel was using Norwegian waters improperly as sanctuary. On the
incident, see ROBERT W. TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 236-39 (50
Naval War College International Law Studies, 1955).
165. A colorable argument could be offered that crossing into the sanctuary State would be
authorized by the original mandate because the sanctuary State is unable or unwilling to comply
with its own obligations under the Charter. However, doing so may present a very real threat in
terms of an intercept on enforcement aircraft by sanctuary aircraft alleging a violation of their
airspace. Further, it would certainly be less politically disruptive to allow the Security Council to
address the matter.
166. The Air Force law of war manual states that "No settled international rule permits
intrusion of military aircraft into national airspace on the grounds of mistake, duress, distress or
other force majeure." AFP 110-31, supra note 111, para. 2-5d. The Navy version, by contrast
notes that "(a)ircraft in distress are entitled to special consideration and should be allowed entry
and emergency landing rights." NWP 1-14M, supra note 160, para. 2.5.1.
167. The right of assistance entry into airspace is less settled. On the U.S. policy regarding
assistance entry, see Joint Staff, Guidance for the Exercise of Right of Assistance Entry (CJCSI
2410.01A),Apr. 23, 1997.
168. In fact, there is just such an obligation in international agreements for the recovery of
astronauts. See Treaty on Principles Governing the Activities of States in the Exploration and
Use of Outer Space, Including the Moon and Other Celestial Bodies, art. V, Jan. 27, 1967, 18
U.S.T. 2410, T.I.A.S. No. 6347, 610 U.N.T.S. 205; Agreement on the Rescue of Astronauts,
and the Return of Objects Launched into Outer Space, arts. 1-4, Apr. 22, 1968, 19 U.S.T. 7570,
T.I.A.S. No. 6599, 672 U.N.T.S. 119.
169. As a practical matter, in a CSAR situation it may be more dangerous to attempt to
defend the downed crew member than seek "repatriation" after capture. The on-scene
commander must direct only tactically sound and safe procedures unlikely to worsen the crew
member's situation.
170. The risk of a mistake is two-fold. First, there are aircraft which are not forbidden to fly in
the zone (e.g., relief aircraft). Secondly, there is always the possibility of a blue-on-blue
engagement, i.e., one in which a friendly aircraft is engaged. For a brief discussion of this latter
issue, see Paul M. Ziegler, Considerations for the Development of Theater Hostilities Rules of
Engagement: Blue-on-Blue Versus Capability Sacrifice (Nov. 1992) (unpublished manuscript on
file at NWC library).
171. On the issue of IFF squawks, see Coe & Schmitt, supra note 82, at 78-79. The
importance of IFF was tragically demonstrated in the Black Hawk incident. The helicopters were
squawking a Mode I code that was incorrect for the location they were in. The Mode IV code for
"friendly" was only received momentarily by the lead F— 15. The wingman received no Mode IV
response. It remains unexplained as to why the Mode IV interrogation was unsuccessful. Board
Report, Executive Summary, supra note 150, at 5.
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The Emerging Role of NATO in
UN Peace Enforcement Operations
James P. Terry
HE RAPID GROWTH OF PEACE ENFORCEMENT REQUIREMENTS
has obliged the United Nations to seek new avenues of cooperation
with groups of member States already organized for joint military action, such
as NATO. 1 This fact, coupled with Congressional concern that American
forces serve under responsible leadership and that strict standards are adhered
to in determining whether U.S. forces should participate in any peace
enforcement operation, suggests that U.S. participation in such operations will
be significantly restructured in the future.
This restructured participation in international peacekeeping will likely
drive similar rethinking among our major allies and other regular contributors
to these operations. From the U.S. perspective, participation in these
operations must now comply with the tenets of Presidential Decision Directive
(PDD) 25. 2 This directive, which requires clear accountability in deciding
when to participate, when to assign forces, and under what conditions, will
likely preclude U.S. participation in Somalia-style operations in which UN
leadership proved inadequate. 3
The renewed U.S. interest in extending the NATO Charter to encompass
threats beyond present NATO borders, 4 as evidenced in the current NATO-led
UN Peace Enforcement Operations
Bosnia peace operation, suggests regional organizations such as NATO may
become the leadership element of choice for future UN -sponsored
peacekeeping and peace enforcement operations.
U.S. Concerns with UN-Led Peace Operations
Recent U.S. experience with the United Nations suggests that there are a
limited number of States with the experience required to lead peace
enforcement operations effectively. This creates difficulties in two ways. While
the UN must rely upon those states with experienced leadership and highly
trained forces for its more difficult operations to succeed, it must also provide
some opportunity for participation to each of its 188 member States. This
suggests that the UN must be encouraged to increase its capability to conduct
Chapter VI peacekeeping operations 5 where a cease-fire exists and
enforcement issues are minimal, and that Chapter VII enforcement
operations 6 might be better left to regional organizations such as NATO under
Chapter VIII of the UN Charter.
In the nearly seven years since our participation and leadership role in
Operation Desert Shield/Desert Storm in support of the government of
Kuwait, the United States has contributed significant forces, at great financial
cost, to three complex military initiatives conducted under the authority and
direction of the UN, and one currently being undertaken under NATO
leadership. The military commitments undertaken under UN leadership in
Somalia, Haiti, and Bosnia, 7 as well as the current NATO-led operation in
Bosnia, 8 responded to multilateral requests for assistance voted upon in
Security Council Resolutions. In another, the humanitarian effort in Rwanda,
our participation was significant, although combat troops were not directly
engaged. In each instance of our participation under UN leadership, the
resulting opposition by Congressional leaders has been forcefully expressed on
the floor of the House and Senate. In the case o{ Somalia, the Byrd and
Kempthorne Amendments forced the U.S. withdrawal from that theater by 31
March 1994. 9
The carefully developed response of the Clinton administration to these
legislative pressures is found in PDD 25. The U.S. has strongly encouraged the
UN and its Department of Peacekeeping Operations (DPKO) to
institutionalize a similar policy analysis in its review o{ those troubled areas
where the use of military force may be the only available international option.
We have recently witnessed greater discrimination in DPKO decision-making
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with respect to proposed operations in Burundi, Liberia, and Angola,
suggesting the UN's own recognition of the benefit of this rigorous analysis.
What may be more significant for the UN is its apparent recognition of its
own limitations in addressing peace enforcement operations under Chapter VII
of the UN Charter where "all necessary means" are required. In supporting the
current NATO leadership role in Bosnia, the UN leadership appears to have
faced up to its lack of credibility in the areas of logistics support, intelligence
gathering, operational leadership, and necessary airlift. For U.S. leaders, it is
apparent the PDD 25 analysis simply will not authorize continued U.S. support
for a UN leadership role in these operations — especially if regional
organizations such as NATO can successfully exercise an expanded charter.
PDD 25 Principles Support Leadership by Regional Organizations
Presidential Decision Directive 25, signed in May 1994, is based upon the
same principles that underlie the Weinberger Doctrine 10 of 1984. The
Directive provides for careful analysis of those factors most relevant to
determining whether, when, how, and to what degree the U.S. should
participate militarily in international peacekeeping and peace enforcement
operations. The PDD 25 policy also requires a thorough assessment and
continuing reassessment of our role to ensure that the operation to which we
have committed forces is effective, well led, and operating within appropriate
rules of engagement. The integrated leadership structure within NATO allows
for this required assessment process, while UN-led force structures, such as
those cobbled together in recent years for peace enforcement, may not.
The impetus for the PDD, like the Weinberger Doctrine before it, came from
a tragic loss of U.S. lives while U.S. forces were serving at the behest of the
international community. Just as the purpose of the 1984 doctrine was to
prevent the reoccurrence of another Beirut bombing incident in which 241
servicemen lost their lives to Shiite extremists, the immediate purpose of the
PDD was to prevent another disaster such as we experienced in Mogadishu,
Somalia, where eighteen Americans were killed by General Mohammed Farah
Aidid's forces in October 1993. 11
The bombing in Beirut can be traced in part to an unwitting shift in the U.S.
operational posture from that of a non-partisan U.S. force patrolling various
areas of the city and providing security at the Beirut International Airport to
that of a partisan force with U.S. naval forces executing fire missions on behalf
of the Lebanese Armed Forces. The tragedy in Mogadishu was similar in that
our operational awareness of the intentions of Aidid was lacking and the force
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committed did not reflect the actual requirements. Both PDD 25 and the
Weinberger principles are designed to preclude the same lack of situational
awareness that arose in Beirut and Somalia.
When Secretary Caspar W. Weinberger outlined specific requirements for
U.S. military involvement, he was not concerned with peace operations per
se. u Nevertheless, those principles, stated below, remain cogent, rational
beacons in any reasoned analysis of the conditions underlying a decision to
commit forces in every military operation, to include peacekeeping and peace
enforcement under a NATO aegis.
• Any use of force must be predicated upon a matter deemed vital to our
national interest.
• The commitment must be undertaken with the clear intention of
winning.
• We must have clearly defined political and military objectives.
• The forces committed must be sufficient to meet the objectives.
• There must be reasonable assurance that we have the support of the
American people.
• The commitment of U.S. forces to combat must be a last resort.
Similarly, the principles within PDD 25 are presented as factors to be
considered in a decision to commit U.S. forces, and equally important, as
criteria required for the successful deployment of those forces. Of necessity, the
conditions and requirements for a Chapter VII peace enforcement action are
greater than for a Chapter VI peacekeeping initiative. As a necessary first step,
the PDD requires that before voting for and supporting a peacekeeping or peace
enforcement operation in the UN Security Council, the U.S. must ask whether
the situation represents a threat to international peace and security. Second,
does the proposed operation, as outlined by the Secretary General or the
leadership of a regional organization, have a defined scope with clear
objectives? Third, is there an international community of interest for dealing
with the problem on a multilateral basis? Fourth, if a Chapter VI peacekeeping
operation is contemplated, is there a working cease-fire in place? Fifth, are
there financial and human resources available? Finally, is there an identifiable
end-point?
These are the same factors the U.S. considered in supporting the current
NATO-sponsored peace operation in Bosnia. The PDD similarly requires that
these factors be considered in determining when to extend an existing
operation, such as recently occurred when the Congress approved the
Administration's decision to extend the Bosnia operation. In addition, when
significant U.S. troop involvement is contemplated in peace enforcement
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operations where all necessary means are authorized, U.S. decision makers
must now ask whether we have:
• The ability to commit sufficient forces to achieve our clearly defined
political and military objectives;
• A clear intention to decisively achieve these objectives; and
• The commitment on the part of the UN or a regional organization to
continually reassess and adjust the objectives, rules of engagement, and
composition of the force to meet changing operational demands.
In committing to participate in the current peace enforcement initiative in
Bosnia, President William Clinton determined that the PDD 25 requirements
could only be met through a NATO-led operation. While U.S. leaders
recognized that a cohesive force led by NATO leaders offered a more effective
means of "executing" the UN mission in Bosnia, there is recognition on the
part of all NATO members that the UN must remain the primary international
"authority" under whose aegis these operations are conducted.
NATO's Role in International Peacekeeping Under the UN Charter
Chapter VIII of the UN Charter 13 refers to regional organizations, such as
NATO, in the context of appropriate regional action in the maintenance of
international peace and security. 14 It is in this area that a relationship exists
between the two organizations, with ultimate authority centered in the United
Nations. Excepting the area of international peace and security, however, the
relationship between the UN and NATO is not hierarchical.
When the NATO Charter was established in 1949 by the Treaty of
Washington, 15 it made no mention of any relationship to the Security Council
as a "regional arrangement," nor did it contain any provision providing for
action only upon the authorization of the Security Council, or for reporting
activities "in contemplation." Instead, the Treaty of Washington expressed the
obligation of NATO's member states to be that of "collective self-defense"
under Article 5 1 of the UN Charter and, correspondingly, embodied only the
obligation to report "measures taken" to the Security Council. 16 This
formulation was adopted by the United States and its NATO allies because
subordination of NATO actions as a regional arrangement to Security Council
review in advance during the Cold War would have subjected all actions to
Soviet veto. By characterizing NATO's military actions as "collective
self-defense" under Article 51, there would be no action of a "regional
arrangement" under Chapter VIII of the UN Charter and no prior Security
Council review.
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The concerns described above and similar concerns with regard to a possible
Chinese veto have, at least for now, dissolved. With the internal disintegration
of the Soviet Union in 1990-1991 and the events in Tiananmen Square in the
People's Republic of China, those two permanent members of the Security
Council have become more willing to support UN -directed involvement in
peacekeeping and peace enforcement operations.
During his campaign for President of Russia in 1991, moreover, Boris Yeltsin
committed to voting for Security Council initiatives which would support
democratic principles. His current entreaties for continued U.S. financial
assistance should ensure that Russia will not act unreasonably in that forum.
Similarly, the fallout from the 1989 events in Beijing's Tiananmen Square has
caused the People's Republic of China to be extremely careful in their actions
in the United Nations and elsewhere lest they risk their "most favored nation"
treatment by the United States. 17
The issues for the United States today in determining whether to support a
response by a regional organization under Chapter VIII or that of the UN as a
whole are more pragmatic than political. Our recent experience in Somalia
with UNOSOM II and Bosnia with UNPROFOR suggest that UN-led operations
may not be capable of undertaking Chapter VII (all necessary means)
missions. 18 These peace enforcement missions require careful planning,
experienced leadership, and highly integrated command and control
arrangements. This combination is required to execute sophisticated
air-ground coordination and air- artillery deconfliction as well as to implement
robust rules of engagement that will protect the force and the civilian
population. Most importantly, this cohesion is absolutely essential if forces with
different experience levels and capabilities are to be successfully integrated to
create force multiplication rather than force division. UN -led peace
enforcement operations, unless directed by one of a handful of states, will
continue to have difficulty achieving this integration. It is this understanding
that underlies the U.S. support for the current NATO-led peace enforcement
operation in Bosnia.
NATO As a Regional Organization: Chapter VIII in Operation
The adaptation of NATO to a role as a Regional Organization under
Chapter VIII with a peace enforcement charter must be viewed as part of a
broad, long-term U.S. and Allied strategy that supports the evolution of a
peaceful and democratic Europe. This strategy benefits U.S. security and builds
on the bipartisan premise that the security of Europe is a vital U.S. interest.
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Certainly, American sacrifices in two world wars and the Cold War have
proven our commitment to the region as a community of shared values, and
those U.S. sacrifices have more than established our interest in recognizing and
encouraging the rapid settlement of disputes in the area.
The U.S. and its NATO Allies have pursued a number of initiatives since the
end of the Cold War to advance this strategy. These include negotiation and
implementation of the 1990 Conventional Armed Forces in Europe Treaty
(CFE), 19 support for the unification of Germany, bilateral assistance to support
reforms in former Soviet states, negotiation and ratification of the START II
strategic arms control treaty, programs to dismantle nuclear stockpiles in
Russia, the elimination of intermediate nuclear forces (INF) , including a 90
percent overall reduction in NATO's nuclear weapons in Europe, and most
importantly, active U.S. diplomacy and the deployment of American troops as
part of a NATO-led force to help stop the war and secure the peace in the
former Yugoslavia.
NATO plays an important role in this broader strategy for many of the same
reasons that it played an essential role in maintaining peace and security in
Europe during the past fifty years. NATO's success during this period went far
beyond its accomplishments as an effective military mechanism for collective
defense and deterrence. It also proved invaluable as a political institution in
fostering continuing involvement of the United States and Canada in
European security.
Adaptation of NATO's interest in broader European security to activity
under the UN Charter's Chapter VIII began in 1990, soon after the fall of the
Berlin Wall. In July 1990, under the active leadership of the Bush
administration, NATO's London Summit Declaration set out new goals for the
Alliance, called for changes in its strategy and military structure, and declared
that the Alliance no longer considered Russia an adversary. These efforts were
reaffirmed by the Alliance's declaration in Copenhagen in June 1991, which
stated that NATO's objective was "to help create a Europe whole and free." At
NATO's Rome Summit in November 1991, the Alliance adopted a new
strategic concept, which reaffirmed the continuing importance of collective
defense, while orienting NATO toward new security challenges, such as
out-of-area missions, crisis management, and peacekeeping operations.
Since then, NATO has taken further steps to advance adaptation to a
Chapter VIII role. At its January 1994 Summit in Brussels, the Alliance made
two important decisions related to its status as a Regional Organization. First, it
launched the Partnership for Peace (PFP) to enable intensive political and
military-to-military cooperation with Europe's new democracies as well as
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States which had considered themselves neutrals during the Cold War. PFP has
proven to be an important and effective program for these States and for the
Alliance: twenty-seven have joined PFP; a PFP Coordination Office has been
established in Mons, Belgium; and thirty major PFP exercises have been held
through June 1997, plus numerous exercises with Partners "in the spirit" of
PFP. The program is proving its merit in Bosnia-Herzegovina, where thirteen
PFP partner States are making substantial contributions to the NATO-led
peace enforcement operation in the Balkans.
The second major initiative related to adaptation to Chapter VIII by NATO
in Brussels in 1994 was the decision to embrace the concept of Combined Joint
Task Forces (CJTF) . This concept will enable both NATO forces and military
assets to be employed in a more flexible manner to deal with peace
enforcement obligations. 20
The benefits of a NATO doctrine that emphasizes flexible response as a
Regional Organization are both immediate and long-term, and they accrue not
only to existing and prospective NATO allies but to States who are outside the
Alliance. Europe is a more secure and stable region because of NATO's
commitment to work within Chapter VIII of the UN Charter. Even now,
Central and East European States are reconstructing their foreign and defense
policies to bring them in line with Alliance values and norms.
While there are many reasons for pursuing the values represented by
NATO — i.e., democratic government, free markets, and security
cooperation — a close analysis of recent events in Europe reveals that the
NATO commitment to flexible response on the continent as a Regional
Organization is also exerting a positive influence on States toward more
peaceful relations. As an example, several recent agreements to ensure stable
borders, promote inter-state cooperation, and address mutual concerns on the
treatment of ethnic minorities have been signed. These include the
Polish-Lithuanian Treaty of 1994, the Hungarian-Slovakian Treaty of 1996, a
series of agreements in 1996 between Poland and Ukraine, the 1996 treaty
between Hungary and Rumania, and the 1996 agreement between the Czech
Republic and Germany concerning Sudetenland.
The NATO acceptance of Chapter VIII responsibilities has been most
significant in Bosnia. NATO countries made a profound contribution to
European security through their participation in the NATO-led
Implementation Force (IFOR) and are still doing so under its successor
Stabilization Force (SFOR), which is continuing to implement the military
aspects of the Dayton Peace Accords. It is clear from these Bosnian missions
that NATO members are already restructuring their forces so they can
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participate in the full spectrum of current and new Alliance demands,
including both Article V missions and peace enforcement missions.
One caution arises from our NATO experience in Bosnia, however. This
relates to mission creep and the concern that military forces are being asked to
perform tasks that are neither military in nature nor related to the agreed
mission statement. During the first year of the IFOR mission, NATO
commanders managed to restrict their responsibilities to separating the
opposing factions, collecting heavy weapons, and supervising the exchange of
territory. By early 1997, broader additional taskings were imposed which would
have been better handled by international civilian agencies or Bosnian
authorities. These included requests to help resettle refugees, set up elections,
monitor local police, and sort out control of local broadcast stations. Pressure
has likewise grown on the SFOR to assist in, if not spearhead, the arrest of
dozens of war criminals. 21
The U.S. understands that non- Article V NATO missions will only succeed
if military personnel are limited to military tasks for which they have been
trained. It is critical that NATO leaders carefully define force size, force
structure, and mission as the SFOR proceeds. Allowing assignment of routine
police functions to a military force will jeopardize many of the other obligations
that the SFOR has assumed in Bosnia.
Observations and Conclusions
NATO acceptance of non-Article V missions is both necessary and
contemplated by its Charter. With the end of the Cold War, there is a unique
opportunity to build an improved security structure to provide increased
stability in the Euro-Atlantic area without creating divisions among NATO
members. The NATO alignment, with its history of military integration and
cooperation brought about by years of successful planning and training for
mutual defense responsibilities, is in the ideal position to participate effectively
in peace enforcement activities requiring the exercise of "all necessary means"
under Chapter VII of the UN Charter.
As noted earlier, peace enforcement operations, to be effective, require
careful planning, experienced leadership, and highly integrated command and
control arrangements. The current Bosnia operation reflects that NATO-led
forces can meet these requirements as well as comply with the principles of
force commitment embodied in PDD 25. The carefully developed response of
leaders of the North Atlantic Alliance to the military requirements of the
Dayton Peace Accords reflect the immense potential resident in NATO for
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peace enforcement. The UN has recognized the need for regional leadership,
and NATO has proven that it can successfully execute missions under UN
authority, following rational requirements for troop deployment.
Notes
1 . The North Atlantic Treaty Organization, comprised of sixteen member States and three
new invitees (Poland, Hungary, and the Czech Republic, who are to be accorded membership in
1999), provides for collective defense in Article V of its Charter. Non- Article V missions
authorized for consideration include peacekeeping and peace enforcement, now properly
considered under Chapter VIII of the UN Charter.
2. Presidential Decision Directive (PDD) 25, May 4, 1994, "Reforming Multilateral Peace
Operations," is a classified directive. An unclassified version has been published as Bureau of
International Organizational Affairs, U.S. Department of State, Pub. No. 10161, The Clinton
Administration Policy on Reforming Multilateral Peace Operations (1994).
3. See James P. Terry, U.N. Peacekeeping and Military Reality, 3 BROWN J. OF WORLD
AFFAIRS 135, 136 (1996), for a review of UN inadequacies in peacekeeping and peace
enforcement operations.
4. During NATO's Rome Summit in November 1991, at the urging of the Bush
administration, the Alliance adopted a new strategic concept which reaffirmed the continuing
importance of collective defense, while orienting NATO toward new security challenges, such as
out-of-area missions, crisis management, and peacekeeping operations.
5. Chapter VI of the UN Charter includes Articles 32-38 and addresses "peaceful
settlement of disputes." Although peacekeeping is nowhere mentioned in Chapter VI or
elsewhere in the Charter, these articles (32-38) are interpreted to authorize the presence of an
international interpositional force only after a peace agreement has been signed and the consent
of the parties to the force presence and its mandate has been obtained.
6. Chapter VII of the UN Charter includes Articles 39-51 and addresses "breaches of the
peace." Because sovereignty claims under Article 2 of the Charter are subordinate to the
international interest in redressing aggression, Chapter VII authorizes "enforcement" actions to
restore the peace and maintain the international "status quo," without the requirement to obtain
the approval of the disputing parties.
7. Operations in Somalia included Operation RESTORE HOPE, authorized by the UN in
S.C. Res. 794, U.N. SCOR, 47th Sess., 3145th mtg., U.N. Doc. S/RES/794 (1992), and
UNOSOM II, authorized in S.C. Res. 814, U.N. SCOR, 48th Sess., 3185th mtg., U.N. Doc.
S/RES/814 (1993). Operations in the former Yugoslavia included Operation DENY FLIGHT,
authorized in S.C. Res. 816, U.N. SCOR, 48th Sess., 3919th mtg., U.N. Doc. S/RES/816 (1993),
Operation PROVIDE PROMISE, authorized in S.C. Res. 770, U.N. SCOR, 47th Sess., 3106th
mtg., U.N. Doc. S/RES/770 (1992), and Operation SHARP GUARD, authorized in S.C. Res. 781,
U.N. SCOR, 47th Sess., 3122nd mtg., U.N. Doc. S/RES/781 (1992). Operations in Haiti
included Operation UPHOLD DEMOCRACY, authorized in S.C. Res. 940, UN SCOR, 49th Sess.,
3413th mtg., U.N. Doc. S/RES/940 (1994), and UNMIH, authorized in S.C. Res. 964, U.N.
SCOR, 49th Sess., 3470th mtg., U.N. Doc. S/RES/964 (1994).
8. The NATO-led Implementation Force (IFOR) implemented the military aspects of the
1995 Dayton Peace Accords in Bosnia and Herzegovina. It has now been succeeded by the
NATO-led Stabilization Force (SFOR). While President Clinton earlier set June 1998 as the
end-date for U.S. participation, in December 1997 he agreed to extend that date.
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9. The Byrd Amendment, Sect. 8156 of the FY 94 Defense Appropriations Act, provided
that any funds appropriated for DoD may be obligated for expenses incurred only through March
31, 1994, for "operations of United States Armed Forces in Somalia." Department of Defense
Appropriations Act of 1994, Pub. L. No. 103-139, § 8156, 107 Stat. 1418 (1993) (enacting the
Byrd Amendment). The Kempthorne Amendment, Sect. 1002 to the FY 95 National Defense
Authorization Act, although less onerous than the Byrd Amendment, restricted funding for U.S.
military personnel on a "continuous" basis after September 30, 1994. National Defense
Authorization Act of 1995, Pub. L. No. 103-337, § 1002, 108 Stat. 2663 (1994) (enacting the
Kempthorne Amendment). See James P. Terry, A Legal Review of US Military Involvement in
Peacekeeping and Peace Enforcement Operations, 42 NAVAL. L. REV. 79 (1995), for a discussion of
other legislation which would limit the President's Article II authority to engage in
peacekeeping. These include the Nunn-Mitchell Amendment to the FY 95 Defense
Authorization Act, the Peace Powers Act, and the National Security Revitalization Act.
10. Secretary of Defense Caspar W. Weinberger articulated criteria for U.S. intervention
before the National Press Club on October 28, 1984. Secretary Weinberger's speech was printed
verbatim in THE NEW YORK TIMES, Oct. 29, 1984, at Al, A4.
1 1 . See discussion in James P. Terry, The Evolving US Policy for Peace Operations, 19 S. ILL. L.
J. 1 19 (1994) . Our formal efforts to improve UN peacekeeping were begun, even before the 1993
disaster, by former President George Bush. In a September 1992 speech to the UN, the
then-President responded to the positive steps reflected in the Secretary General's 1992
"Agenda for Peace" by committing the U.S. to work with the then-Undersecretary for
Peacekeeping, Kofi Annan, to improve UN peacekeeping capabilities.
12. The Weinberger Criteria evolved from "lessons learned" from the Long Commission
Report, largely written by Professor Grunawalt while serving as Commission Counsel, which
documented the flawed U.S. actions leading to the 1983 Beirut bombing.
13. Chapter VIII, in Articles 52-54 of the UN Charter, specifically provides for "regional
arrangements or agencies for dealing with such matters relating to the maintenance of
international peace and security as are appropriate for regional action. Article 53 provides, in
pertinent part:
The Security Council shall, where appropriate, utilize such regional arrangements or
agencies for enforcement action under its authority. But no enforcement action shall be
taken under regional agencies without the authorization of the Security Council.
14. See An Agenda for Peace, Report of the Secretary General, Jan. 31, 1992, U.N. Doc.
A/47/277-S/24111. In paragraphs 60-65, Boutros-Boutros Ghali called upon regional
organizations to do more. In his 1995 Supplement to An Agenda for Peace, Report of the
Secretary General, Jan. 3, 1995, U.N. Doc. A/50/60-5/1995/1, the Secretary General specifically
endorsed, in paragraph 79, the present NATO-led operation in Bosnia-Herzegovina.
15. Treaty of Washington (North Atlantic Treaty), 63 Stat. 2241, T.I.A.S. 1964 (entered
into force August 24, 1949).
16. Article 5 of the Treaty of Washington provides, in pertinent part:
Any such armed attack and all measures taken as a result thereof shall immediately be
reported to the Security Council. Such measures shall be terminated when the Security
Council has taken the measures necessary to restore and maintain international peace
and security.
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17. See Terry, supra note 9, at 84.
18. See discussion in BOWETT, THE LAW OF INTERNATIONAL INSTITUTIONS 164-66 (4th
ed. 1982).
19. This agreement alone has resulted in the elimination of more than 50,000 pieces of
military equipment in Europe.
20. A third major initiative involves the invitation of additional European States to join
NATO. While this NATO Enlargement Initiative is not directly related to Chapter VIII
involvement by NATO in peace enforcement activities, the training and increased
military- to-military relations that will accompany enlargement will complement NATO's
increased capacity to perform as a regional organization.
21. In addition, several alleged Croat war criminals agreed to turn themselves in to SFOR
officials in November 1997 in exchange for speedy trials. The U.S. has agreed to furnish
investigators and military prosecutors to ensure compliance with the speedy trial guarantee.
While not a part of the U.S. SFOR commitment directly, it reflects the type of military
requirements we must be prepared to meet in peace enforcement operations.
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Nuclear Weapons and the World Court:
The ICJPs Advisory Opinion
and Its Significance for
ILS* Strategic Doctrine
Robert F. Turner
Introduction
Y THE NARROWEST OF VOTES (a 7 to 7 split on perhaps its most
controversial conclusion), in fifteen opinions (including six dissents),
totaling 270 pages, following eleven days of hearings during which twenty-five
States testified and more than 30 submitted written materials, 1 the
International Court of Justice (ICJ or World Court), on 8 July 1996, provided
the United Nations General Assembly with a nonbinding advisory opinion 2 on
the lawfulness of using, or threatening to use, nuclear weapons. In the process,
it solemnly affirmed the obvious, obfuscated the serious, and on at least one
important issue that was not even raised by the General Assembly's request
almost certainly reached the wrong conclusion with decisive unanimity. In the
Nuclear Weapons and the World Court
process, it may have inadvertently and gratuitously undermined the prospects
for international peace and world order on the eve of the new millennium.
Perhaps not surprisingly, the opinion was quickly "interpreted" for the
media by the "spin-doctors" representing such groups as the original
"ban-the-bomb" Campaign for Nuclear Disarmament (CND), 3 Greenpeace, 4
and the International Association of Lawyers Against Nuclear Arms, 5 as a
decisive victory for opponents of nuclear weapons — ignoring the fact that their
most vociferous defenders on the Court had issued strong dissenting opinions,
while at the same time the opinion was generally welcomed by prominent U.S.
Government lawyers 6 as about as harmless a decision as anyone could have
anticipated under the circumstances, especially given the opinion's political
genesis. 7
Particularly revealing were the reactions of the Japanese mayors of
Hiroshima and Nagasaki, who had made impassioned appeals to the Court to
declare nuclear weapons illegal. Hiroshima Mayor Takashi Hiraoka told
reporters that "the outcome looks as if to approve of the status quo," and
suggested that "the court is controlled by nuclear powers." 8 Nagasaki Mayor
Itcho Ito expressed his "anger" at the World Court's opinion, declaring to the
press: "I felt enraged. . . ." 9
In reality, despite some serious shortcomings, once properly understood, the
core of the advisory opinion was consistent with well-established principles of
international law and is largely to be welcomed. Nevertheless, because it will
certainly continue to be cited in national and international policy debates in
the coming years — and some generally reputable authorities have already
clearly been misled 10 — it is important to understand what the Court did and
did not say, and to identify a few clear shortcomings in the opinion.
There were initially two separate requests before the World Court for an
advisory opinion on this issue, but the one brought by the World Health
Organization was turned down by the Court because it was outside the lawful
scope of the WHO's responsibilities. 11 While the United States and several
other countries urged the Court to use its discretion and reject the companion
request from the General Assembly as well, the authority of the Assembly to
seek such an opinion was obvious. 12
The General Assembly had taken the position in nonbinding 13 resolutions as
early as 24 November 1961, that "the use of nuclear and thermo-nuclear
weapons is ... a direct violation of the Charter of the United Nations;" 14
however, these were typically approved by narrow votes that were hardly
indicative of a broad international consensus. 15 Furthermore, even some of the
General Assembly resolutions seemed to recognize that no legal rule had yet
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Robert F. Turner
been established outlawing nuclear weapons per se; for example, an ambiguous
1978 resolution asserted that "the use of nuclear weapons . . . should ... be
prohibited. . . ." 16
Responding to an initiative launched by several anti-nuclear
Non-Governmental Organizations (NGOs), on 15 December 1994, the UN
General Assembly approved Resolution 49/75 K, which provided in part that
the Assembly:
Decides, pursuant to Article 96, paragraph 1, of the Charter of the United
Nations, to request the International Court of Justice urgently to render its
advisory opinion on the following question: "Is the threat or use of nuclear
weapons in any circumstances permitted under international law?"
The resolution was approved by a vote of 78 to 43, with 38 abstentions.
Thus, only a plurality of those States voting registered support for such an
advisory opinion; or, put differently, a slight majority of the organization did
not approve the request. While the Charter seems to exclude abstentions in
determining the outcome of a vote, 17 the Court might certainly have
considered this reality in deciding whether to respond positively to the request.
More significantly, an argument might be made that the resolution itself
required a two-thirds majority to pass pursuant to the second paragraph of
Article 18 of the Charter 18 — on the theory that urging the World Court to
declare nuclear weapons per se illegal (the clear objective of the resolution)
could have the potential to undermine the entire system of nuclear deterrence
upon which international peace and stability have been premised for fifty years.
Writing about the Court's decision while still a New York University law
professor, the current Deputy Legal Adviser to the United Nations argued that
"it would not have been difficult to hold that a question relating to the threat or
use of nuclear weapons" falls under the two-thirds majority requirement, but
noted that "inexplicably no representative objected" on these grounds.
Nevertheless, he concluded: "It would seem that the Court, in perhaps
unseemly eagerness to address what is evidently one of the most interesting and
important current legal questions, failed to consider the possibly most serious
objection to its jurisdiction to do so." 19
Misstating the Question
There is a more fundamental problem with the General Assembly
resolution: It was not phrased in the language of international law, and indeed
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seemed calculated to shift the burden of proof from those who argued that
nuclear weapons were unlawful to those who felt otherwise. The underlying
premise of modern international relations is that sovereign States are coequal
and generally independent of constraints except to the degree they consent to
limitations on their freedom of action (normally in exchange for similar
constraints on the conduct of other States) , either through treaties and other
international agreements or by a consistent practice that States recognize as
reflecting a legal obligation. The burden thus falls upon those who claim a
breach has occurred to identify the conventional or customary legal rule that
limits the sovereign discretion of the State accused of the breach.
The classic statement of this principle was made by the Permanent Court of
International Justice — the predecessor to the ICJ established under the League
of Nations — in the landmark 1927 case of the S.S. Lotus:
International law governs relations between independent States. The rules of
law binding upon States therefore emanate from their own free will as expressed
in conventions or by usages generally accepted as expressing principles of law and
established in order to regulate the relations between these co-existing
independent communities or with a view to the achievement oi common aims.
Restrictions upon the independence of States cannot therefore be presumed. 20
This principle was reaffirmed by the ICJ as recently as the 1986 Paramilitary
Activities case, 21 and the improper wording of the 1994 resolution was objected
to by several States in their written and oral presentations to the Court. 22 The
Court essentially ruled this harmless error, 23 while at the same time
acknowledging: "State practice shows that the illegality of the use of certain
weapons as such does not result from an absence of authorization but, on the
contrary, is formulated in terms of prohibitions." 24
However, it was clear from the declarations and opinions of the individual
judges that accompanied the Court's opinion that the Lotus principle is under
assault by judges from the Third World who wish to see greater constraints
placed upon States without having to obtain their consent. Thus, President
Bedjaoui of Algeria contended in his Declaration that, while the Lotus case had
"expressed the spirit of the times":
It scarcely needs to be said that the fact of contemporary international society is
much altered. . . . The resolutely positivist, voluntarist approach of international
law which still held sway at the beginning of the century — and to which the
Permanent Court also gave its support in the aforementioned [Lotus]
judgment — has been replaced by an objective conception of international law, a
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law more readily seen as the reflection of a collective juridical conscience and as
a response to the social necessities of States organized as a community. 25
Restricting the Right of Self-Defense
The real question before the Court was actually far narrower than might at
first appear from a reading of the General Assembly's Resolution, as it was
universally agreed that possession of nuclear weapons did not confer some sort
of immunity from the prohibition against the aggressive use of force embodied
in the UN Charter. 26 Thus, the only real question to be addressed was not
whether the threat or use of nuclear weapons was ever lawful, but whether
international law prohibited a State in possession of nuclear weapons from
using them, or threatening to use them, under any conceivable circumstances
in a defensive response to armed international aggression. 27
Indeed, since deterrence itself is premised upon an implied "threat" to use
whatever existing weapons may be necessary and otherwise lawful in the event
of aggression, the IC] was essentially being asked to outlaw the most powerful
instrument in international relations for the dissuasion of aggression and the
promotion of peace. 28 The Court does not appear to have focused on this
reality, although it was at least implicit in the statements of some of the States
who provided comments. 29 One of the most compelling reasons for the Court
to have exercised its discretion 30 and not issued the requested opinion — in
addition to the fact that a majority of the General Assembly had not supported
the request, and several States had warned that such an opinion might
undermine diplomatic negotiations — was that the most likely consequence of
even hinting that nuclear weapons were per se unlawful might well be to
undermine the policy of nuclear deterrence that has worked so well for
half-a-century in keeping the world out of World War III. This point will be
addressed infra. 31
The Proper Legal Standard
The proper role of the International Court of Justice is not to decide what
result a majority of judges believe to be good public policy or "fair" or
"just," 32 or to divine legal rules from deep meditation, but to determine
whether the presumptive right of sovereign States to pursue their perceived
interests in a specific manner has been limited by an established rule of
international law. As the Court acknowledged: "It is clear that the Court
cannot legislate. . . ." 33
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Article 38 of the Statute of the ICJ sets forth the sources of international law
the Court may use in deciding whether conduct has been prohibited:
Article 38
1 . The Court, whose function is to decide in accordance with international
law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings
of the most highly qualified publicists of the various nations, as subsidiary
means for the determination of rules of law.
Ascertaining the Relevant Law
Thus, the role of the Court was to examine each of these sources of law to
ascertain whether, and if so to what extent, they might limit the threat or use of
nuclear weapons and then to inquire whether there were any conceivable
defensive settings in which the threat or use of a nuclear weapon might not be
in conflict with any such legal rules. The basic inquiry was whether
international law included a per se prohibition against every threat or use of
nuclear weapons and that the proper test was not the "worst case" setting of a
massive aggressive assault involving the delivery of thousands of large nuclear
devices against another State's cities, but rather the "best case" — such as a use
of a nuclear weapon on the High Seas to destroy an enemy warship preparing to
launch weapons of mass destruction against the civilian population of the State
seeking to defend itself. 34
International Conventions. Quite correctly, no State contended before the
Court that nuclear weapons were free from constraints under international
law. On the contrary, the nuclear powers readily conceded that any threat or
use of such weapons must comply with the jus ad helium governing the initiation
of hostilities and the jus in hello regulating the conduct of military
operations — some provisions of which were embodied in treaties and others in
customary law. 35
For example, it was universally acknowledged that the UN Charter limited
any threat or use of nuclear (or any other) weapons to acts of individual or
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collective self-defense or when authorized by the UN Security Council. 36
Similarly, it was accepted without dissent that the laws of armed conflict —
prohibiting such behavior as attacks on noncombatants, the infliction of
unnecessary suffering, and the use of weapons that are incapable of
discriminating between combatants and noncombatants — are applicable to
nuclear weapons. 37
The Court is to be commended for rejecting a variety of assertions by
opponents of nuclear weapons, such as that Article 6 of the International
Covenant on Civil and Political Rights (guaranteeing the "inherent right to
life") outlawed the defensive use of nuclear weapons in combat (a contrary
holding would presumably have outlawed all lethal weapons). 38 It also rejected
claims that a variety of environmental treaties implicitly outlawed nuclear
weapons, 39 that various treaties prohibiting "poisonous weapons" applied to
nuclear weapons, 40 or that any use of nuclear weapons would constitute
genocide. 41
The States which denied the existence of a per se prohibition on nuclear
weapons recognized that there were a variety of treaties and international
agreements imposing legal limits on nuclear weapons, ranging from bilateral
arms control agreements negotiated by the United States and the former
Soviet Union to multilateral treaties prohibiting the emplacement of nuclear
weapons in outer space, on the seabed or ocean floor, and in several geographic
"nuclear-free" zones. 42
After a lengthy discussion, the Court concluded that while the growing
number of treaties limiting nuclear weapons might be seen as "foreshadowing a
future general prohibition on the use of such weapons, . . . they do not
constitute such a prohibition by themselves." 43 In this connection, the Court
noted that under several of these treaties "the nuclear-weapon States have
reserved the right to use nuclear weapons in certain circumstances," and "these
reservations met with no objection from the [other treaty] parties ... or from
the Security Council." 44
International Custom. As already noted, historically, and as a general principle
today, States are only obligated to abide by legal rules to which they have
individually consented — either by entering into treaties or other international
agreements intended to be binding under international law, or by joining in a
widespread practice with other States out of the belief (opinio juris) that it is an
obligation of international law. The provisions of treaties do not normally
constrain States which have not consented to be so bound, and a State which
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persistently registers its objection to an emerging rule of customary
international law is normally not bound by that rule.
However, there is an exception to the general principle that a State must
consent to be bound by a legal rule. Since the Court's Statute was written, a
consensus has emerged that certain "peremptory norms" of international law
are of such fundamental importance that they will be imposed even upon
persistent objectors despite their lack of consent. Often identified by the Latin
expression jus cogens, these principles have been so universally embraced
through all major legal systems, and the consequences of their breach are
viewed as so objectionable, that the collective world community basically
agreed to impose them on all States. Classic examples include the prohibition
embodied in Article 2(4) of the UN Charter prohibiting the aggressive use of
military force, the prohibition against certain categories of large-scale murder
contained in the Genocide Convention, and the prohibitions against piracy
and the slave trade.
The Court acknowledged the existence of such "intransgressible principles
of international customary law" 45 in the Nuclear Weapons case, but such norms
were not critical to the decision. The standard for constituting a preemptory
norm of international law is considerably higher than that for normal rules of
customary law, and there are no jus cogens rules that are not clearly also
customary law. Once having found that there were no rules of customary law
prohibiting every threat or use of nuclear weapons, 46 it was unnecessary for the
Court to ask whether these norms had achieved peremptory status.
To be sure, no country has actually used a nuclear weapon in hostilities since
1945; but the Court rejected assertions that this was evidence of customary law
because of the clear absence of an opinio juris* 1 Another contention that was
rejected was that a series of UN General Assembly resolutions should be
accepted as evidence of a customary rule. While the General Assembly has no
general "lawmaking" authority, 48 its resolutions can, when overwhelmingly
supported by member States, serve as evidence of the existence of an opinio
juris. However, as the Court observed, the antinuclear resolutions often
provided that nuclear weapons "should be prohibited," and they were "adopted
with substantial numbers of negative votes and abstentions," leading the Court
to conclude: "although those resolutions are a clear sign of deep concern
regarding the problem of nuclear weapons, they still fall short of establishing
the existence of an opinio juris on the illegality of the use of such weapons." 49
General Principles of Law, National Judicial Decisions, and Scholarly
Writings. The basic nature of the issue before the Court precluded serious
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recourse to "general principles of law recognized by civilized nations," as the
question of threatening or using nuclear weapons is inherently international in
character. 50 While the Court did note that it was "not called upon to deal with
an internal use of nuclear weapons," 51 it is obvious that "civilized nations" have
not formulated special "principles of law" governing the domestic use of
nuclear weapons. Similarly, there was little recourse to such "subsidiary means"
for determining legal rules as national judicial opinions and scholarly
treatises. 52
The Dispositif
The Dispositif, or operative provisions, of the Nuclear Weapons case
consisted of six conclusions in paragraph 105 of the opinion, half of which were
little more than what the Court's Vice President (and current President)
acknowledged to be "anodyne asseveration [s] of the obvious. . . ," 53 Thus, no
State has ever contended that there was any "specific authorization of the
threat or use of nuclear weapons" in customary or conventional international
law, 54 and including a sentence on this point made little legal sense other than
as a political concession to the framers of the General Assembly Resolution
who had couched their request in such terms.
Similarly, deciding that "a threat or use of force by means of nuclear
weapons that is contrary to Article 2, paragraph 4, of the United Nations
Charter and that fails to meet all the requirements of Article 51, is unlawful," 55
is obviously tautological — akin to solemnly declaring that "an act prohibited by
international law is unlawful." Again, the inclusion of such an obvious and
unquestioned conclusion presumably can be explained as a concession either
to the supporters of the General Assembly Resolution or to the Court
dissenters who had wished to declare a per se prohibition.
Of an essentially similar nature is the Court's unanimous conclusion that:
A threat or use of force by means of nuclear weapons should also be compatible
with the requirements of the international law applicable in armed conflict,
particularly those of the principles and rules of international humanitarian law,
as well as with specific obligations under treaties and other undertakings which
expressly deal with nuclear weapons. . . . 56
Again, the nuclear-weapons States had conceded all of these points, 57 which
have to this writer's knowledge never been seriously in dispute. Such obvious
conclusions hardly justified the time and money invested in the process by the
General Assembly, the Court, or the member States.
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Turning to more controversial matters, by a still decisive vote of
eleven-to-three, the Court decided:
There is in neither customary nor conventional international law any
comprehensive and universal prohibition of the threat or use of nuclear weapons
as such. . . . 58
This was perhaps the most important part of the decision, both because of the
Court's nearly four-to-one majority on the issue and because it answered the
basic legal questions implicit in the General Assembly's request.
To be sure, the Assembly had actually asked whether there were any
circumstances in which the threat or use of nuclear weapons was permitted
under international law, but the Court quite properly had rephrased the answer
to be consistent with the reality that international law permits that which is not
prohibited. 59 Indeed, had the Court limited its reply to this sentence — perhaps
accompanied by language noting that the lawfulness of any use of a nuclear
weapon, like all other weapons not prohibited per se by international law, must
be determined in the context of both why and how they are threatened or
used — it would have been an excellent opinion.
Perhaps the most controversial of the Court's conclusions reads:
It follows from the above-mentioned requirements [of the international law of
armed conflict] that the threat or use of nuclear weapons would generally be
contrary to the rules of international law applicable in armed conflict, and in
particular the principles and rules of humanitarian law;
However, in view of the current state of international law, and of the elements of
fact at its disposal, the Court cannot conclude definitively whether the threat or
use of nuclear weapons would be lawful or unlawful in an extreme circumstance
of self-defence, in which the very survival of a State would be at stake. . . . 60
Perhaps the first observation that should be made about this part of the
Court's Dispositif is that it was not initially reached by the majority vote normally
required by the Court's Statute. 61 Judge Andres Aguilar Mawdsley, of Venezuela,
died in October 1995, a month before the case was argued — leaving a Court of
only fourteen members, who divided evenly, seven-to-seven, on this conclusion.
Since in contentious cases it is highly undesirable for tribunals to be unable to
reach a decision, the Court's Statute provides:
In the event of an equality of votes, the President or the judge who acts in his
place shall have a casting vote. 62
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Because of the application of this rule, President Bedjaoui of Algeria — who
in his separate Declaration characterized nuclear weapons as "the ultimate
evil" 63 — was permitted to cast a second vote, bringing the official count on this
provision to eight- to-seven. One might note that this outcome was totally a
coincidence of timing, for had the vote occurred less than a year later, after the
distinguished American jurist Steven Schwebel was elected President of the
Court, a different opinion would presumably have resulted.
As an aside, one might argue that the Court has the discretion to withhold
the "casting vote" procedure in advisory opinions. The considerations which
encourage the definitive resolution of contentious disputes between or among
States are not so clearly applicable in the case of a request for an advisory
opinion. The Statute gives the Court discretion to decide which of its
procedural rules are "applicable" to an advisory opinion, 64 and it would have
been consistent with the Statute 65 and fully responsive to the General Assembly
to reply that:
(1) International law does not prohibit the threat or use of nuclear weapons per
se\
(2) Like all weapons, the threat or use or nuclear weapons must comply with
existing jus ad helium and jus in hello,
(3) Based upon the Court's understanding 66 of the nature of such weapons, their
use would only be lawful in an exceptional setting; and
(4) In the absence of more detailed information about the characteristics of the
weapon in question, its intended target, the purpose for which the threat or use
of nuclear weapons is made, and many other circumstances, the Court is unable
to provide more specific meaningful advice that would be applicable to every
situation.
In any event, the weight to be accorded the Court's nonbinding "advice" to the
General Assembly on this point ought to be evaluated in the context of the
evenly split vote that produced it; and the "casting vote" procedure should be
recognized as the jurisprudential equivalent of a coin toss.
However, having said that, one might also note that, under the
circumstances, the basic conclusion is not all that remarkable. Essentially, the
Court is saying that by the narrowest of possible margins it has decided that it
cannot decide whether the threat or use of nuclear weapons would be lawful,
even "in an extreme circumstance"; and, given the horrific consequences
commonly associated with any use of nuclear weapons, such a cautious
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conclusion is not all that surprising — particularly in the absence of a concrete
case or detailed information about the characteristics of modern (or future
generations of) nuclear weapons.
Indeed, had the Court merely reported that it "cannot conclude definitively
whether the threat or use of nuclear weapons would be lawful or unlawful in an
extreme circumstance of self-defence," omitting the further qualifying
language "in which the very survival of a State would be at stake," this writer
would probably have found that reasonable and acceptable. Given the stakes
involved, speculative conclusions in the absence of necessary facts probably
serve little purpose.
One certainly can embrace the Court's recognition that international
humanitarian law would preclude the use of nuclear weapons in other than
"extreme circumstances," but to conclude further than such circumstances
would necessarily have to involve "a threat to the survival of a State" is
unwarranted by any established or identified legal rule. As shall presently be
demonstrated, there are easily conceivable settings in which a State might have
no effective alternative to using a nuclear weapon to neutralize a threat to the
lives of millions of its civilians, even though the State might nevertheless
continue to exist if it elected to endure such a sacrifice. And if there is any
principle of international humanitarian law that precludes even a threat to use
nuclear weapons as a means of deterring illegal international aggression
involving the use of unlawful weapons of mass destruction, the Court has failed
to identify it. Indeed, any rule that would prohibit a State in lawful possession
of nuclear weapons from even threatening to use them defensively to preserve
the lives of tens of millions of innocent noncombatants would stand as clear
evidence that law had become part of the problem — or, in the words of
Dickens: "If the law supposes that, the law is a ass, a idiot." 67
Dangerous Ambiguity: The World Court and the Use of Nuclear
Weapons in Defense of Third States
The Court does not in the Dispositif clarify whether a distinction exists
between threatening or using nuclear weapons in response to "extreme
circumstances of self-defense" threatening the survival of the nuclear-weapons
State itself, and a threat by such a State to use nuclear weapons in collective
defense against a threat to the survival of a third State; however, elsewhere in
the opinion there is a reference to a State using nuclear weapons "in an
extreme circumstance of self-defence, in which its very survival would be at
stake." 68 This is an alarming statement, and it is contrary to the spirit of the
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United Nations Charter, which expressly recognizes "the inherent right of
individual or collective self-defence if an armed attack occurs against a Member
of the United Nations." 69 Senator Arthur Vandenberg, who chaired the
subcommittee of Commission III at San Francisco that actually drafted Article
51, explained to his Senate colleagues in 1949:
To make a long story short, La tin- America rebelled — and so did we. If the
omission [of the right of collective self-defense] had not been rectified there
would have been no Charter. It was rectified, finally, after infinite travail, by
agreement upon article 5 1 of the Charter. Nothing in the Charter is of greater
immediate importance and nothing in the Charter is of equal potential
importance. 70
Similarly, in explaining this provision to the Senate Foreign Relations
Committee in July 1945, John Foster Dulles affirmed:
At San Francisco, one of the things which we stood for most stoutly, and which
we achieved with the greatest difficulty, was a recognition of the fact that that
doctrine of self-defense, enlarged at Chapultepec to be a doctrine of collective
self-defense, could stand unimpaired and could function without the approval of
the Security Council. 71
There is a strong argument that the right of sovereign States to use necessary
and proportional lethal force in defense against armed international aggression
is not only "inherent," as the English- language text of Article 51 terms it, but
also "imprescriptable" (as the Russian text of Article 51 asserts 72 ) or
"inalienable" (as the United States argued in 1928 73 ). In his separate opinion,
Judge Fleischhauer (Germany) argued that the Court could also have found
legal support for this right in "the general principles of law recognized in all
legal systems," as it is universally recognized "that no legal system is entitled to
demand the self-abandonment, the suicide, of one of its subjects." 74 This view
was also embraced by President Bedjaoui, who acknowledged that "[a] State's
right to survival is ... a fundamental law, similar in many respects to a 'natural'
law." 75 It is certainly not a right to be narrowed by judicial fiat of the World
Court, and anyone asserting that a victim of aggression may not defend itself by
the use of lawful weapons, against lawful targets, in compliance with the law of
armed conflict — or may not obtain voluntary assistance from other
peaceloving States in meeting the aggression collectively — has the burden of
identifying the legal basis for such a rule in conventional or customary
international law. The principle of acting collectively to meet threats to the
peace is not only unimpaired by the Charter, it is the very first objective
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embodied in the Charter 76 ; and simple declarations, unsupported by
compelling legal authority, asserting or implying such limitations, are
insufficient — even when they emanate from the World Court. As the Court
has acknowledged, it "cannot legislate," 77 yet a careful reading of their opinions
suggests that "legislate" is exactly what some of the judges attempted to do. 78
Few legal doctrines have been more critical in deterring aggression and
promoting peace than the recognized right of relatively weak victims of
aggression to call upon other peaceloving members of the world community for
assistance in the event they are victims of armed international aggression; and
why the World Court seems determined to undermine this important Charter
principle is unclear. 79 In essence, the World Court seems to be announcing that
States that can acquire weapons of mass destruction and do not respect the rule
of law will be free to use them at will against weaker peaceloving States that
lack such weapons — because the nuclear-weapons States will be prohibited by
international law from responding (or even threatening to respond) in kind to
even the most flagrant criminal acts of aggression. 80 This point is of more than
academic importance, because one of the incentives in the Nuclear
Non-Proliferation Treaty (NPT) 81 to encourage States to forego their right to
develop nuclear weapons was a promise, endorsed by the Security Council, that
the nuclear-weapon States would come to their defense in the event they were
threatened with nuclear weapons. 82 As Judge Oda (Japan) said in the
conclusion of his dissenting opinion in the case:
One can conclude from the above that, on the one hand, the NPT regime which
presupposes the possession of nuclear weapons by the five nuclear-weapon States
has been firmly established and that, on the other, they have themselves given
security assurances to the non-nuclear weapon States by certain statements they
have made in the Security Council. ... It is generally accepted that this NPT
regime is a necessary evil in the context o{ international security, where the
doctrine of nuclear deterrence continues to be meaningful and valid. 83
Pactum de Contrahendo or Pactum de Negotiando?
The final paragraph of the Dispositif was also reached by unanimous
decision:
There exists an obligation to pursue in good faith and bring to a conclusion
negotiations leading to nuclear disarmament in all its aspects under strict and
effective international control. 84
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This part of the opinion may warrant more consideration than it has thus far
received. While the General Assembly's request for an advisory opinion was
clearly politically motivated and poorly phrased, the question focused entirely
upon the existing legal status of the threat or use of nuclear weapons, and did
not even suggest that advice was being sought on obligations to negotiate new
limitations. 85 Nevertheless, the Court sua sponte elected to address this
issue — presumably as another consolation to States that had hoped or
expected a decision that nuclear weapons are unlawful per se.
Not surprisingly, this dicta did not escape the attention of the General
Assembly, which in December 1996 approved a resolution thanking the Court,
"taking note" of the opinion, and then resolving that the General Assembly:
3. Underlines the unanimous conclusion of the Court that there exists an obligation
to pursue in good faith and bring to a conclusion negotiations leading to nuclear
disarmament in all its aspects under strict and effective international control;
4. Calls upon all States to fulfill that obligation immediately by commencing
multilateral negotiations in 1997 leading to an early conclusion of a
nuclear-weapons convention prohibiting the development, production, testing,
deployment, stockpiling, transfer, threat or use of nuclear weapons and
providing for their elimination. 86
Because dicta from the IC] advisory opinion is being used to argue that a legal
duty now exists to reach agreement on these issues, it is important to look more
carefully at this part of the Court's opinion and at the legal theories upon which
it is premised.
By way of background, paragraph F of the Dispositif was premised upon
Article VI of the Nuclear Nonproliferation Treaty, which provides:
Article VI
Each of the Parties to the Treaty undertakes to pursue negotiations in good faith
on effective measures relating to cessation of the nuclear arms race at an early
date and to nuclear disarmament, and on a treaty on general and complete
disarmament under strict and effective international control. 87
In paragraphs 99 and 100 of its advisory opinion, the Court quotes this
provision and then provides this conclusion:
The legal importance of that obligation goes beyond that of a mere obligation of
conduct; the obligation involved here is an obligation to achieve a precise
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result — nuclear disarmament in all its aspects — by adopting a particular course
of conduct, namely, the pursuit of negotiations on the matter in good faith. . . .
This twofold obligation to pursue and to conclude negotiations formally concerns
the 182 States parties to the Treaty ... or, in other words, the vast majority of the
international community. 88
Despite the unanimous vote on paragraph F of the Dispositif, the Court
seems clearly to have confused two related legal concepts: an agreement to
conclude a specific agreement in the future (pactum de contrahendo) and an
agreement to negotiate in good faith in the future in an effort to reach
agreement on a specified issue (pactum de negotiando). In this case, the Court's
conclusion is simply not reconcilable with the text or travaux of the agreement.
It is submitted that Article VI of the NPT does not, and cannot reasonably be
interpreted to, 89 obligate treaty parties to conclude anything — the obligation is
clearly only to "pursue negotiations in good faith" towards that end.
The basic principles for interpreting international agreements are set forth
in the Vienna Convention on the Law of Treaties, 90 which, while not binding
as conventional law on all parties to the NPT, are widely recognized as
reflecting customary international law. Under the heading "General rule of
interpretation," the Convention provides, inter alia:
Article 3 1
1. A treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the light of
its object and purpose.
The "ordinary meaning" of a promise to "pursue negotiations" is not "to
reach an agreement" — which, if it has any meaning, presumably would require
States to accept the best terms the other side was willing to offer. 91 To be sure,
the same obligation would exist for the second State — or in this instance for all
of the 185 parties to the treaty. Does this mean that the first State to get to the
World Court can obtain a judgment requiring all of the other treaty parties to
"conclude" the treaty favored by the petitioning State? Since the so-called
"obligation to . . . conclude negotiations" is not simply for a disarmament
treaty, but one incorporating "strict and effective international control," is it
the proper role of the Court to consider the first proposal brought before it, and
if in the Court's wisdom that proposal includes such control, to compel every
other treaty party to adhere to those terms? Or does the Court instead intend
to assume the legislative task of drafting perhaps hundreds of pages of highly
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detailed and intrusive inspection and verification terms, to be imposed upon
sovereign States irrespective of their consent?
What, pray tell, is the Court then to do with the States that are not parties to
the NPT and thus have clearly not consented to this alleged "obligation ... to
conclude negotiations?" Having declared that all treaty parties must enter into
"a treaty on general and complete disarmament under strict and effective
international control," what is the Court then to do about the small number of
non-parties to the treaty who do not elect either to surrender all of their
weapons or to submit to the controls the Court seeks to impose upon treaty
parties? Are they to be rewarded by being allowed to remain outside the
disarmament regime — presumably expanding their arsenals (at "going-out-
of-business" discount prices) as their neighbors are compelled by the Court to
rid their territory of all weapons — or will the Court anoint the first
"acceptable" draft treaty submitted to it by any treaty party as establishing a jus
cogens obligation erga omnesl
Perhaps the most interesting practical question raised by such an approach is
how long the NPT would continue to exist before one State after another
invoked its right under Article X to withdraw from the treaty — citing the
out- of- control World Court as the "extraordinary event" that has "jeopardized
the supreme interests of its country?" 92 Surely world peace and the rule of law
would not be furthered by such an obvious misinterpretation of the NPT.
Fortunately, the NPT is safe, because the World Court clearly reached the
wrong conclusion in this nonbinding advisory opinion. The issue raised by
Article VI of the NPT is not one of first impression in international law. Even
when the language of an agreement clearly provides that the parties will not
just negotiate but conclude a future agreement, unless the terms are essentially
fixed by reference to the original agreement, tribunals tend to treat them as
nothing more than a commitment to negotiate in good faith. Thus, in the 1925
Tacna Arica Award (Chile v. Peru) — which involved an agreement to conclude
a future protocol to prescribe "the manner in which the plebiscite is to be
carried out, and the terms and time for the payment by the nation which
remains the owner of the provinces of Tacna and Arica" 93 — the arbitrator
found:
As the Parties agreed to enter into a special protocol, but did not fix its terms,
their undertaking was in substance to negotiate in good faith to that end. . . . Neither
Party waived the right to propose conditions which it deemed to be reasonable
and appropriate to the holding of the plebiscite, or to oppose conditions proposed
by the other Party which it deemed inadvisable. The agreement to make a special
protocol with undefined terms did not mean that either Party was hound to make an
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agreement unsatisfactory to itself provided it did not act in bad faith. Further, as the
special protocol was to be made by sovereign States, it must also be deemed to be
implied in the agreement . . . that these States should act respectively in
accordance with their constitutional methods, and bad faith is not to be
predicated upon the refusal of ratification of a particular proposed protocol
deemed by the ratifying authority to be unsatisfactory. 94
In 1931, the predecessor to the current World Court — the Permanent
Court of International Justice (PCIJ) — issued an Advisory Opinion on
Railway Traffic between Lithuania and Poland 95 at the request of the League of
Nations. Summarized briefly, in an effort to resolve a quarrel between the two
countries, the Council of the League of Nations had approved a resolution
recommending "the two Governments to enter into direct negotiations as
soon as possible in order to establish such relations between the two
neighbouring States [as] will ensure 'the good understanding between
nations upon which peace depends'. . . ," 96 This resolution was accepted by
both countries, and Poland subsequently contended that Lithuania was
obligated to agree to reopen a section of railway between Vilna and Livau
that had been destroyed during World War I.
The PCIJ concluded that both States were legally bound by the "agreement
to negotiate" contained in the Council's resolution, but rejected the Polish
view that this was in reality a legal obligation "not only to negotiate but also to
come to an agreement," explaining:
The Court is indeed justified in considering that the engagement incumbent on
the two Governments in conformity with the Council's Resolution is not only to
enter into negotiations, but also to pursue them as far as possible, with a view to
concluding agreements. . . . But an obligation to negotiate does not imply an
obligation to reach an agreement. . . . 97
In 1950 the newly established International Court of Justice was asked for an
advisory opinion on whether South Africa had a legal duty to negotiate a
trusteeship agreement to place the former German colony of South-West
Africa — which had been placed under South African control by a League of
Nations mandate following World War I — under the new UN trusteeship
system. 98 While the Court majority found no such obligation, in his dissent,
Judge Alvarez found not only a duty to negotiate but also an "obligation" to
reach an agreement. However, he acknowledged: "even admitting that there is
no legal obligation to conclude an agreement, there is, at least, a political
obligation. . . .""
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Consider as well a 1972 arbitral award by a tribunal established to resolve
disputes between Greece and Germany resulting from World War II. The
tribunal was asked to decide whether an undertaking to engage in "further
discussions" and "negotiations" included an obligation to reach an actual
agreement. The tribunal held;
With the ratification of the Agreement, the parties . . . undertook to negotiate
their dispute anew notwithstanding the earlier refusals of both sides to retreat
from positions that had hardened over the years. Article 19 must be considered
as a pactum de negotiando. The arrangement arrived at between the parties in the
present case is not a pactum de contrahendo as we understand it. This term should
be reserved to those cases in which the parties have already undertaken a legal
obligation to conclude an agreement. . . . 10 °
The tribunal went on to note that even a pactum de negotiando creates legal
obligations for the parties:
However, a pactum de negotiando is also not without legal consequences. It means
that both sides would make an effort, in good faith, to bring about a mutually
satisfactory solution by way of a compromise, even if that meant the
relinquishment of strongly held positions earlier taken. It implies a willingness for
the purpose of negotiation to abandon earlier positions and to meet the other
side part way. 101
An article published in the highly acclaimed Encyclopedia of Public
International Law in 1997 on these two types of agreements concluded that
neither contains an enforceable legal obligation to do more than negotiate in
good faith:
In the author's view there is no relevant distinction between the two pacta in the
legal quality of the obligations resulting from these instruments. There is no case
where an absolute "agreement to agree" has been recognized by an international
tribunal. Therefore, the contractual obligations to negotiate in good faith with a
view to concluding a subsequent agreement, laid down in pactum — be it named
pactum de contrahendo or pactum de negotiando — will only differ slightly according
to the circumstances in the particular case: the margin of negotiation on matters
of substance left open to the parties for shaping the ultimate agreement will be
larger or smaller according to the degree to which the substantive contents of the
final agreement can be determined by means of the pactum itself. 102
International and National Treatises, If one were to examine "judicial
decisions and the teachings of the most highly qualified publicists of the various
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nations," 103 one would find similar conclusions. One of the world's foremost
authorities on treaty law was Lord Arnold Duncan McNair, who during his
distinguished career served as president of both the International Court of
Justice and the European Court of Human Rights. He provides this discussion
in his classic 1961 treatise, The Law of Treaties:
Pactum de contrahendo
This term is correctly applied to an agreement by a State to conclude a later
and final agreement, and these preliminary agreements are of frequent
occurrence. . . . When they are expressed with sufficient precision, they create
valid obligations. . . .
It is, however, necessary to distinguish between a true obligation to enter into a
later treaty and an obligation merely to embark upon negotiations for a later treaty
and to carry them on in good faith and with a genuine desire for their success.
Less happily in our opinion, the term pactum de contrahendo is applied to an
obligation assumed by two or more parties to negotiate in the future with a view to
the conclusion of a treaty. This is a valid obligation upon the parties to negotiate
in good faith, and a refusal to do so amounts to a breach of the obligation. But the
obligation is not the same as an obligation to conclude a treaty or to accede to an
existing or future treaty, and the application to it of the label pactum de
contrahendo can be misleading and should be avoided. 104
Turning to United States law, Professor Allan Farnsworth served as
Reporter to the Second Restatement of Contracts, and his multivolume treatise,
Farnsworth on Contracts, is among the leading texts on the issue in the United
States. He discusses a variety of judicial opinions refusing to enforce
agreements to agree on the grounds that they were "vague and indefinite," and
under the heading "Agreements to Negotiate" writes:
Under an agreement to negotiate, the parties negotiate with the knowledge that
if they fail to reach ultimate agreement they will not be bound. The parties to an
agreement to negotiate do, however, undertake a general obligation of fair
dealings in their negotiations. . . . [H]ere there is no way of knowing what the
terms of the ultimate agreement would have been, or even whether the parties
would have arrived at an ultimate agreement .... Because of the uncertain scope
of an undertaking to negotiate, a court cannot be expected to order its specific
performance, though it might enjoin a party that had undertaken to negotiate
exclusively from negotiating with others. 105
Professor Farnsworth notes that English courts have been "adamant" on this
issue, quoting "a distinguished English judge" as having "condemned an
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agreement 'to negotiate fair and reasonable contract sums' " by saying: "If the
law does not recognise a contract to enter into a contract (where there is a
fundamental term yet to be agreed) it seems to me it cannot recognise a
contract to negotiate." 106
The Travaux Preparatoire, If there is any remaining doubt about whether
Article VI of the NPT is an agreement to conclude a future agreement, it is
useful to return to the Vienna Convention on the Law of Treaties:
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the
preparatory works of the treaty and the circumstances of its conclusion, in order
to confirm the meaning resulting from the application of article 31, or to
determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable. 1
While it is difficult to contend that the language of Article VI is ambiguous
or obscure — or otherwise meets the test for resorting to supplementary means
of interpretation — it is nevertheless useful to consult the travaux preparatoires
to confirm that the unanimous World Court reached the wrong result. The
standard reference on the NPT is Mohamed I. Shaker's multivolume study,
The Nuclear Non-proliferation Treaty: Origin and Implementation 1959-1979,
which provides useful background on Article VI.
Dr. Shaker notes that the original drafts included merely preambulatory
references to the importance of ending the nuclear arms race and achieving
disarmament, and notes that "the two super-Powers preferred a simple treaty
without linking it with any other arms control and disarmament measures. . . ." 108
India, however, "advocated that a non-proliferation treaty must embody an
article of solemn obligation under which nuclear- weapon States would negotiate a
meaningful programme of reduction of existing stockpiles of weapons and their
delivery vehicles. . . . The obligation was therefore not merely to negotiate a
meaningful programme but to undertake certain measures." 109 Similarly, Romania
proposed that "(t)he nuclear weapon States Parties to this Treaty undertake to
adopt specific measures. . . . However, as Dr. Shaker observes:
[I]t was realised that it would not have been accepted by both the Soviet Union
and the United States. Moreover, it was pointed out that it would liave liardly been
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feasible in legal terms to enter into obligations to arrive at agreements. The least [sic]
that could be done, therefore, was to introduce in the NPT an obligation "to
pursue negotiations in good faith" as proposed by Mexico, or "to negotiate" as
proposed by Brazil. . . . The Mexican formula was the one adopted by the two
co-Chairmen in their identical treaty drafts of 18 January 1968. m
Lest there be any doubt about the obligation that resulted, Dr. Shaker notes:
Under the pressure of the non-aligned States as well as from some of their own
allies, the two super-Powers merely accepted in the NPT to undertake to pursue
negotiations in good faith, but not, as pointed out by one American negotiator,
"to achieve any disarmament agreement, since it is obviously impossible to predict the
exact nature and results of such negotiations." 112
It is thus clear from the text, the travaux, and the underlying legal principles
involved, that Article VI of the NPT constitutes only a pactum de negotiando — an
obligation to negotiate in good faith towards the specified end — and, despite the
unanimous character of the Nuclear Weapons advisory opinion on this point to
the contrary, it does not constitute a pactum de contrahendo. Indeed, the very
language of the agreement — with references to "effective measures" and "strict
and effective international control" — explains why this was but an undertaking
"to pursue negotiations in good faith" on the subject.
It might be added that if, despite the clear language to the contrary, this was
a pactum de contrahendo, the terms of this agreement would presumably need to
be objectively ascertainable with reasonable clarity. Unless the Court is
prepared to spell out the precise terms of a "treaty on general and complete
disarmament under strict and effective international control," including
identifying when, where, by whom, and under what conditions the highly
intrusive international verification inspections are to occur — so that it will be
possible to identify which States are in breach for failing to anticipate and
accept those terms — it is difficult to take this portion of the Court's decision
very seriously. It is mere brutum fulmen.
It is evident that the Court cannot flush out even basic terms for any such
agreement, because no such agreement ever existed in the minds of the parties
when they entered into the treaty. Presumably, they all shared a vision that
someday the world might live at peace without war, and some may well have
had in mind specific provisions they intended to try to insert in any convention
promoting this end. But the convention travaux provide no suggestion that
anything approaching final treaty terms was ever discussed as the NPT was
drafted.
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Equally clearly, one can be confident that few countries would have ratified
the NPT with the expectation that the World Court might subsequently
declare them in breach of an obligation to ratify a subsequent treaty containing
highly intrusive but unknowable verification and inspection provisions — not
to mention to surrender all of their arms — and premise their security upon the
Court imposing a verifiable and effective machinery to prevent all possible
violations of this unknown future convention. Put simply, Article VI of the
NPT creates nothing more than an obligation to negotiate in good faith; and
the Court's 1996 advisory opinion cannot change that.
A Legal Use of Nuclear Weapons: The Missing Hypothetical
The World Court is, in the view of the present writer, clearly mistaken in its
conclusion that the only conceivable lawful use of nuclear weapons would
involve a threat to the survival of a State, but the fault may not be entirely that
of the judges. Much of the public debate on this issue has been fueled by
scholarship and government studies, dating from the 1950s and 1960s, on the
destructive nature of nuclear weapons, and the nuclear-weapons States have
understandably surrounded their more recent weapon-development programs
in a shroud of secrecy.
One would have thought, given the importance of the issue and the
widespread reports of the existence of a new generation of low-yield, highly
accurate nuclear weapons, that at least one of the nuclear powers would have
set forth at least one hypothetical that the Court could use in its legal analysis
phase — applying the law to specific facts — but other than a few vague
references to "High Seas," "submarines," and "deserts," 113 this does not appear
to have been done.
Candidly, even these brief references should have given the Court sufficient
insight to envision some possible uses of nuclear weapons that would not
necessarily conflict with existing laws — a single example would have permitted
a conclusion that under certain conceivable circumstances the threat or use of
nuclear weapons may be lawful. The ICJ Statute provides that in its advisory
functions the Court shall be "guided by the provisions of the present Statute
which apply in contentious cases to the extent to which it recognizes them to
be applicable," 114 and those provisions provide a plethora of fact-finding
instruments. Unlike the situation in American courts, where the absence of a
party permits the tribunal to accept the facts as properly pleaded by the other
party, the World Court must before rendering a decision in the absence of a
party "satisfy itself . . . that the claim is well founded in fact and law." 115 It may
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also call upon parties to a case "to produce any document or to supply any
explanation," 116 and may "entrust any individual, body, bureau, commission, or
other organization that it may select, with the task of carrying out an inquiry or
giving an expert opinion." 117
Sadly, instead of asking States who argued that not all potential threats or
uses of nuclear weapons were per se unlawful to provide one or more examples,
the Court essentially bypassed the task of applying the law to the most
favorable conceivable set of facts implicit in the question before it. 118 As Judge
Higgins observed:
It is not sufficient, to answer the question put to it, for the Court merely briefly to
state the requirements of the law of armed conflict (including humanitarian law)
and then simply to move to the conclusion that the threat or use of nuclear
weapons is generally unlawful by reference to the principles and norms. ... At no
point in its Opinion does the Court engage in the task that is surely at the heart of
the question asked: the systematic application of the relevant law to the use or
threat of nuclear weapons. It reaches its conclusions without the benefit of
detailed analysis. An essential step in the judicial process — that of legal
reasoning — has been omitted. 119
This is unfortunate, because there are any of a number of hypotheticals
which the Court could have envisioned (or which the nuclear-weapon States
might have suggested) that might be used to illustrate a lawful use of a nuclear
weapon. A single case should have allowed the Court to inform the General
Assembly that in at least some circumstances the threat or use of nuclear
weapons would be lawful — as the Court was neither requested nor expected to
provide a comprehensive legal evaluation of every conceivable circumstance.
Even at this date, it would seem useful to have such a hypothetical.
Consider for a moment the plight of the Russian Navy, whose sailors have
often been required to go months without a paycheck and for whom the new
regime promises little of the glory of earlier decades. Imagine that a group of
Russian officers and their crew decide that action is warranted, and they decide
to sell their Delta IV, Typhoon, or newer Bore;y-class 120 nuclear submarine to a
terrorist group or international criminal cartel for a few million dollars.
Alternatively, imagine they decide themselves to use this powerful weapons
system to compel the world to restore Leninists to power throughout the old
Soviet Empire — demanding in the process that all elected leaders of each
current regime be publicly executed, or else.
To enforce these demands and illustrate the else, the group controlling the
submarine launches three SS-N-18 121 sea-launched ballistic missiles (SLBM)
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Robert F. Turner
from the mid-Atlantic, each with three 500-kiloton reentry vehicles (each
with more than twenty-five times the destructive power of the device
detonated over Hiroshima in 1945), targeted for air bursts over London, Paris,
and Berlin during afternoon rush hour. Within less than an hour, millions of
casualties are reported in Europe, and the long-term projections are even more
frightening.
Having demonstrated its seriousness, the submarine continues towards the
American coastline, its captain announcing that three of its remaining missiles
will soon be fired at targets in the Washington, D.C., New York and Chicago
areas. It will then move to the Pacific and attack targets in Los Angeles, San
Diego, and Mexico City; and if confirmation has not been received that the
changes in regimes and executions of "traitors" have taken place, similar
attacks will be made in Japan, China, and perhaps other population centers in
Asia. To deter any foolish efforts to destroy the submarine, the captain explains
that all of his missiles will be launched immediately at American cities upon
any detection of another submarine or warship in its vicinity, or if the sound of
a launched torpedo is detected.
Let us suppose further that, with the cooperation of the Russian
Government, the United States has been able to track the movement of the
submarine. The Military Committee at the United Nations convenes, and
upon its advice the Security Council immediately asks the United States to
take effective military action to destroy the submarine before it launches the
missile now reported to be aimed to impact within 500 meters of the UN
Headquarters.
Does international law really require the American representative to the
Security Council to announce:
Mr. President and Members of the Security Council. I have been in contact with
my Government, and I have some good news and some bad news. The good news
is that our Air Force reports that its pilots have the skill to drop a 20-kiloton
nuclear device sufficiently close to the submarine that they are certain it would be
destroyed instantaneously and without any warning, before any additional
missiles could be launched. The bad news is that, pursuant to the legal principles
enunciated by the International Court of Justice in the 1996 Advisory Opinion
on the Threat or Use of Nuclear Weapons, since the United States could clearly
"survive" the attacks which are being threatened — albeit with the projected loss
of 10-20 million of our people — it is unlawful for us to attempt effective measures
to defend ourselves (or the United Nations) in this situation. Indeed, the
weapons that previously would have been available to address such a threat were
removed from our inventory and dismantled some years ago. Let us pray.
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Perhaps the threat instead would come from a Libya, Iran, Sudan, North
Korea, or even Cuba that had purchased a used Soviet diesel submarine and
installed primitive ballistic missiles designed to disperse toxic anthrax or other
biological agents across population centers in various countries. One could
hypothesize numerous such scenarios that would be as credible as any
suggestion in 1989 that a year later Saddam Hussein would invade Kuwait and
threaten to use weapons of mass destruction against UN sanctioned forces
trying to protect Kuwait and its neighbors. One could multiply such examples
several fold as the venue shifted from destroying submarines or other warships
on the High Seas, to striking tanks or super-hardened military command posts
or weapons bunkers in the desert, to assorted other options not involving direct
attacks near population centers.
Indeed, as this writer has suggested elsewhere, 122 one of the most effective
means of deterring aggression is to have the capability to attack radical regime
elites who initiate aggressive wars. Possession of a highly- accurate, low-yield,
deep penetrating "bunker-buster" nuclear device might well persuade a future
Saddam Hussein — who had sacrificed hundreds of thousands of Iraqi soldiers
in his war against Iran and was clearly willing to risk massive troop loses in his
1991 resistance to the UN Security Council — that initiating or continuing
massive international aggression might well have negative consequences of a
highly personal nature. 123
One need not devote pages of analysis to demonstrate that using a nuclear
weapon against a terrorist submarine on the high seas, if necessary to terminate
an ongoing barrage of far more destructive weapons of mass destruction against
innocent civilians, is clearly consistent with jus ad bellum and jus in hello. It
follows as well that the hypothesized attacks would not "threaten the survival
of the State." 124 Therefore, the Court's extremely narrow exception in
paragraph E of the Dispositif is simply wrong as a matter of international law.
Fortunately, of course, advisory opinions of the World Court have no binding
authority over States. 125
Making the World Safe for World War III:
Limiting Defense and Undermining Deterrence
For anyone who has witnessed the inhumanity of war firsthand and cares
about the preservation of peace, portions of the Court's advisory opinion are
disquieting. Without in the least disputing the horrendous consequences likely
to be associated with any use of nuclear weapons, one can still wonder whether
the judges have forgotten the frightening realities of conventional warfare?
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Why, one must wonder, are they so eager to outlaw even the threat of a nuclear
response to major acts of armed international aggression — is there some sense
of "fair play" that leads them to wish to assure future Adolph Hitlers and
Saddam Husseins that the consequences of massive aggression will never be
too unacceptable?
The primary reason for the establishment of the United Nations, of which
the International Court of Justice is the "principal judicial organ," 126 is "to save
succeeding generations from the scourge of war. . . ." 127 Yet many of the leaders
of the antinuclear campaign which precipitated the General Assembly's
request for an advisory opinion view the problem not as stopping
aggression — irrespective of the weapons used — but as merely eliminating
nuclear weapons. One scholar, for example, envisions "an unprecedented
opportunity" as the world approaches the new century "to create a world in
which our children will be free from the threat of nuclear war." 128 One is
tempted to respond: "You mean like in Europe in 1915 and 1943?"
He tells us that "[s]ince 1945, humanity has lived on the edge of a precipice,
with human history literally hanging in the balance," 129 and that "[f]or over
forty years, the world has lived with the relentless and harrowing fear that the
nuclear arms race might eventually result in a nuclear war." 130 One need not
quarrel with such conclusions to note, as well, that in no small part because of
the perceived horrendous consequences of such a war, during this same period,
most of the world has also lived in peace.
This same writer expresses understandable alarm at estimates that a
strategic nuclear exchange attacking only "key military targets" could kill 10 to
20 million people; 131 but he fails to remind us that two-to-four times that many
people died in the conventional phases of World War II, 132 that more than 100
million people have died in major conventional wars in this century, 133 and that
advances in conventional military technology in the past half-century strongly
suggest that a non-nuclear World War III could be far more destructive of
human life than were any earlier wars — even if one assumes that, once started,
such a conflict would not ultimately escalate to the use of even illegal weapons
of mass destruction.
The most vociferous critics of nuclear deterrence apparently see no
distinction between the possession of such weapons by liberal democracies
firmly committed to upholding the Charter principles and possession by rogue
States and terrorist groups — ignoring a compelling body of political science
that demonstrates that by far the most important variable in predicting the
outbreak of war is not the existence or absence of any category of weapons, but
the nature of the political systems of the potential parties to the conflict. 134
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Compelling statistical data indicate that democracies do not attack
democracies, and aggression results not from peaceloving States being too well
armed, but far more commonly from a relatively small number of radical regime
leaders concluding that they will benefit from aggression because their
potential adversaries lack either the will or the ability to respond effectively to
aggression. 135 As the American Founding Fathers understood, 136 and as the
Latin maxim qui desiderat pacem praeparet bellum 131 affirms, it is perceived
weakness, rather than strength, in its potential victims that encourages
aggression.
Indeed, the most impressive contemporary scholarship demonstrates with
remarkable clarity that both World War I and World War II resulted in large
part from perceptions by potential aggressors that their victims, and States
which might come to their aid, lacked both the will and the ability to respond
effectively to aggression. 138 Thus, the eminent Yale University Historian
Donald Kagan notes that, following World War I, "British leaders disarmed
swiftly and thoroughly and refused to rearm in the face of obvious danger until
it was too late to save France and almost too late to save Britain," 139 and he
observes that the failure of the League of Nations to act to defend Ethiopia
from aggression in 1936 helped persuade Mussolini to join forces with Hitler:
"The democracies seemed weak, indecisive, and cowardly, and their failure and
inaction gave courage to their enemies." 140
When Hitler moved to remilitarize the Rhineland in violation of the
Versailles Treaty, Professor Kagan notes that "British policy was to avoid war at
all costs," 141 and that Hitler had actually promised his generals that he would
withdraw his forces at the first sight of French resistance. He quotes Hitler as
later writing: "The forty-eight hours after the march into the Rhineland were
the most nerve-wracking in my life. If the French had then marched into the
Rhineland we would have had to withdraw with our tails between our legs, for
the military resources at our disposal would have been wholly inadequate for
even a moderate resistance." 142 Professor Kagan writes:
There is no doubt that some leaders of the German Army were powerfully
opposed to an attack on Czechoslovakia ... [in 1938] because they believed it
would lead to a general war for which Germany was not prepared and which it
was bound to lose. When they confronted Hitler he assured them that Britain
and France would not fight Perhaps the most important reason for the failure
of this belated attempt at deterrence was that it lacked credibility. Whatever its
military capabilities, would Britain have the will to use them? Whatever their
commitments, would the British have the courage to honor them? . . . Small
wonder that Hitler never seems to have taken his opponents' warnings seriously.
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As he laid plans for the attack on Poland he discounted the danger from the
leaders of Britain and France. "I saw them at Munich," he said. "They are little
»143
worms.
World War II did not result from a failure of "arms control" or the presence
of too many weapons. The London and Washington naval agreements helped
weaken the military power of the democracies, and after the war was over,
Japanese leaders explained that watching movie newsclips of American
soldiers in Mississippi training with wooden rifles had helped convince them of
American weakness — and thus strengthened the case for attacking Pearl
Harbor. 144
Properly utilized, international law has a powerful contribution to make to
the cause of international peace and security. But parchment barriers like the
NPT, the Geneva Protocol on chemical and bacteriological warfare, 145 and the
Chemical Weapons Convention (CWC), 146 are not enough to guarantee peace.
The reason Hitler did not use his chemical weapons when the tides of battle
turned against him during World War II was not out of respect for
international law, but because he knew the Allies would retaliate in kind as a
belligerent reprisal. Indeed, if all that were necessary to control aggression were
more solemn, legally-binding, promises, we would need no new treaties — for
any act of aggression will automatically breach the most fundamental principle
of the UN Charter. 147 Why assume that a tyrant who is willing to ignore the UN
Charter is going to abide by any lesser legal obligation that is not self-enforcing?
The world should have learned from recent experiences with North Korea
and Iraq that, by itself, the NPT is not likely to prevent the unlawful
procurement of nuclear weapons. As has been noted time and again, that
"genie" is out of the bottle, and the basic technology is reportedly even
available in public libraries and on the Internet. Efforts to erect new legal
barriers to the possession, threat, or use of nuclear weapons — while not
necessarily unhelpful or a bad idea — risk missing the point that the primary
goal is to prevent war of any kind.
University of Iowa Professor Burns Weston is certainly one of the most
intelligent, articulate, and respected scholars in the "ban-the-bomb" camp;
and in a 1989 address to the First World Congress of the International
Association of Lawyers against Nuclear Arms, Professor Weston observed: "to
rid ourselves of the nuclear habit we must rid ourselves also of the war habit." 148
Yet he acts as if there were no distinction between aggressor and victim,
contending that "nothing is more menacing to the long-term well-being of our
planet than the sincerely communicated threat to use nuclear weapons if and
when sufficiently provoked." 149 He apparently sees no moral distinction, and
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no implication for the preservation of peace, between that "threat" being made
by someone like Saddam Hussein to compel peaceful Kuwait to submit to his
aggression, and such a "threat" being made by a State that is being "provoked"
by a flagrant act of armed international aggression and is acting under the
authority of a resolution of the Security Council, in order to dissuade the
aggressor from resorting to the illegal use of weapons of mass destruction that
might claim millions of innocent lives. 150 There is a difference.
Rather than permitting peaceloving States to use the threat 151 of a nuclear
response to deter aggression and protect peace, Professor Weston would have
us disarm them of the weapons that have proven most effective in deterring
massive acts of international aggression for most of this century; suggesting in
the alternative that all the world really needs are a few new "mutual
nonaggression" pacts. In 1989 he wrote of the need for such treaties between
NATO and the Warsaw Pact, 152 and between the United States and the Soviet
Union; 153 and one might assume that today his solution to what might be called
the "Saddam Hussein problem" would be to get the Iraqi leader to sign a new
binding international agreement promising, henceforth, to be good.
Of course, Iraq is already a party to the UN Charter, the Nuclear
Nonproliferation Treaty, and various other solemn international treaties
which clearly prohibit the things Saddam has been doing (invading his
neighbors, developing chemical, biological, and nuclear weapons, etc.); but
surely if we could just get him to sign one more piece of paper he would change
his ways — especially if we could assure him that his victims will no longer be
able to respond most effectively if he violates his promise.
The logic is so compelling that one can only wonder why the world didn't
think of it earlier? Imagine the lives that might have been saved had we just
been able to get Germany and Japan to ratify a binding international treaty
condemning "recourse to war for the solution of international controversies"
and renouncing war "as an instrument of national policy" 154 a decade before the
outbreak of World War II. Readers who recall the optimism that greeted the
1928 Kellogg-Briand Pact may recall as well that it was solemnly ratified by
both Japan 155 and Germany 156 — leading many people to conclude after the
outbreak of World War II that international law was inherently ineffective as
an instrument of peace. A better lesson to draw from this unfortunate
experience is that unenforced international law is an unreliable barrier to
aggression; 157 and a corollary may well be that aggression is encouraged when
law-abiding States are denied the legal right to seek to deter aggression with
their most effective legal weapons and the aid of other peaceloving States.
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Put simply, the (former) President of the World Court was mistaken when he
described nuclear weapons as being "the ultimate evil. . . ," 158 In this context, if
there is an "ultimate evil" it is probably the kind of armed international aggression
that results in the large-scale slaughter of innocent people and the subjugation of
human freedom. When nuclear weapons — or any weapons — are used for that
purpose, they are used in an evil manner. When they are used to dissuade potential
aggressors from slaughtering or enslaving their neighbors, they serve a positive
moral value. The weapons themselves have no inherent moral content. 159
The Military Utility of Nuclear Weapons
A central theme of much of the legal criticism of nuclear weapons is that,
because of their inherent nature, they have no legitimate military purpose or
value. Thus, States should not hesitate to give them up, and there is no
legitimate "cost" in banning them. For example, in his book Prohibition of
Nuclear Weapons: The Relevance of International Law, Elliott L. Meyrowitz
asserts that "the nature and effect of nuclear weapons are such that they are
inherently incapable of being limited with any degree of certainty to a specific
military target." 160 From such reasoning he concludes that "nuclear weapons
have no military utility." 161
This is simply mistaken. Even if one were to assume that no State would ever
likely again elect to resort to such weapons during combat, it is a dangerous
fallacy to assume that weapons can have no utility or "military value" outside of
combat. Indeed, the great Chinese strategist Sun Tzu emphasized this point
well more than 2,500 years ago when he wrote: "For to win one hundred
victories in one hundred battles is not the acme of skill. To subdue the enemy
without fighting is the acme of skill." 162
A thorough discussion of the utility of nuclear weapons is far beyond the
scope of this short chapter, but two examples should suffice to establish the
point. The first is the critically important role that nuclear weapons obviously
played in keeping Europe at peace throughout the Cold War; and the second is
the successful use of the implied threat of a nuclear reprisal if Saddam Hussein
continued with his plans to use chemical or biological weapons during the
1 990-9 1 Persian Gulf conflict.
Nuclear Deterrence and the Cold War. It is critically important to keep in
mind, as the world seeks relief from its fear of intentional or accidental nuclear
holocaust, that the world as a whole has seen a remarkable era of relative peace
for more than half-a-century, and that no single factor has likely played a more
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decisive role in bringing this about than the shared perception of the
unacceptability and futility of nuclear war and the realization that such an
outcome might be an unintended consequence of the escalation of any major
act of aggression by conventional weapons.
Conrad Harper, the Legal Adviser to the U.S. Department of State in 1995,
cautioned the Court that "nuclear deterrence has contributed substantially
during the past 50 years to the enhancement of strategic stability, the avoidance
of global conflict and the maintenance of international peace and security." 163
Similarly, Sir Nicholas Lyell, Agent for the United Kingdom, observed:
[T]hese two requests [by the General Assembly and World Health
Organisation] ignore . . . the somber but vital role played by nuclear weapons in
the system of international security over the past 50 years. . . . Our real world
remains a fragmented and dangerous place, and in this real world, to call in
question now the legal basis of the system of deterrence on which so many States
have relied for so long for the protection of their people could have a profoundly
destabilizing effect. 164
Perhaps no one formally involved in the case expressed this point more
eloquently than Judge Rosalyn Higgins (United Kingdom):
One cannot be unaffected by the knowledge of the unbearable suffering and vast
destruction that nuclear weapons can cause. And one can well understand that
it is expected of those who care about such suffering and devastation that they
should declare its cause illegal. It may well be asked of a judge whether, in
engaging in legal analysis of such concepts as "unnecessary suffering," "collateral
damage" and "entitlement to self-defence," one has not lost sight of the real
human circumstances involved. The judicial loadestar . . . must be those values
that international law seeks to promote and protect. In the present case, it is the
physical survival of the peoples that we must constantly have in view. We live in
a decentralized world order, in which some States are known to possess nuclear
weapons but choose to remain outside of the non-proliferation treaty system;
while other such non-parties have declared their intention to obtain nuclear
weapons; and yet other States are believed clandestinely to possess, or to be
working shortly to possess nuclear weapons (some of whom indeed may be a
party to the NPT). It is not clear to me that either a pronouncement of illegality
in all circumstances of the use of nuclear weapons or the answers formulated by
the Court in paragraph 2E best serve to protect mankind against that
unimaginable suffering that we all fear. 165
Deterring Saddam's WMDs in the Gulf War. Anyone who doubts that the
threat of a nuclear response can deter wrongful conduct should read the
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Dissenting Opinion in the Nuclear Weapons case of then-World Court Vice
President (now President) Steven M. Schwebel (United States), who cites
chapter and verse in demonstrating that in 1990-91, American threats to
retaliate with nuclear weapons persuaded the Iraqi regime not to make use of
the 150 bombs and 25 ballistic-missile warheads filed with anthrax toxin that
had been specially prepared for use during the war. Judge Schwebel quotes at
length, for example, from a Washington Post article of 26 August 1995:
Iraq has released to the United Nations new evidence that it was prepared to
use deadly toxins and bacteria against U.S. and allied forces during the 1991
Persian Gulf War that liberated Kuwait from its Iraqi occupiers, U.N.
Ambassador Rolf Ekeus said today.
Ekeus, the chief U.N. investigator of Iraq's weapons programs, said Iraqi
officials admitted to him in Baghdad last week that in December 1990 they
loaded three types of biological agents into roughly 200 missile warheads and
aircraft bombs that were then distributed to air bases and a missile site. . . .
U.S. and U.N. officials said the Iraqi weapons contained enough biological
agents to have killed hundreds of thousands of people and spread horrible
diseases. . . .
Ekeus said Iraqi officials claimed they decided not to use the weapons after
receiving a strong but ambiguously worded warning from the Bush
administration on Jan. 9, 1991, that any use of unconventional warfare would
provoke a devastating response.
Iraq's leadership assumed this meant Washington would retaliate with
nuclear weapons, Ekeus said he was told. 166
Judge Schwebel also quotes from an interview with Iraqi Foreign Minister
Tariq Aziz on the U.S. public television program Frontline, in which Aziz was
asked why the expected chemical attack on U.S. forces "never came." He
replied: "We didn't think that it was wise to use them. That's all what I can say.
That was not — was not wise to use such kind of weapons in such kind of a war
with — with such an enemy." 167
After placing on the record an abundance of evidence of the impact on Iraqi
policy of the American threat 168 to retaliate with nuclear weapons in the event
of an Iraqi use of weapons of mass destruction (even though such a response
had apparently been eliminated as an option before the war started 169 ), Judge
Schwebel concluded:
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Thus there is on record remarkable evidence indicating that an aggressor was or
may have been deterred from using outlawed weapons of mass destruction
against forces and countries arrayed against its aggression at the call of the
United Nations by what the aggressor perceived to be a threat to use nuclear
weapons against it should it first use weapons of mass destruction against the
forces of the coalition. Can it seriously be maintained that Mr. Baker's
calculated — and apparently successful — threat was unlawful? Surely the
principles of the United Nations Charter were sustained rather than transgressed
by the threat. 170
The Characteristics of Modern Nuclear Weapons, For perhaps understandable
reasons, governments are reluctant to discuss publicly the details of their most
sensitive military programs. Former government officials and employees who
have been granted access to highly classified defense programs are usually
prohibited from discussing such details as well. Having been personally
involved — quite unsuccessfully — in trying to persuade the United States
Government to declassify persuasive evidence in connection with an earlier ICJ
case more than a dozen years ago, 171 the present writer is not completely
surprised that the official submissions to the Court did not focus on the
technical details of the latest generation of nuclear weapons. Perhaps the
strongest statement in this regard was by the Government of the United
Kingdom, which told the Court:
[M]uch of the writing on nuclear weapons on which these arguments rely dates
from the 1950's and early 1960's. Modern nuclear weapons are capable of far
more precise targeting and can therefore be directed against specific military
objectives without the indiscriminate effect on the civilian population which the
older literature assumed to be inevitable. 172
Many references to the nature of nuclear weapons in presentations to the
Court, and even portions of the Court's opinion, 173 suggest that this
observation by the United Kingdom is correct. Not all "nuclear weapons" are
identical. The Soviet Union, for example, once designed a nuclear weapon
with a yield of 150 megatons and tested one with a yield oi approximately 50
megatons. 174 Identifying a use for such weapons consistent with the law oi
armed conflict would be extremely difficult, and most possible uses of a weapon
capable of l/100th of that level of destructiveness might well conflict with the
law — particularly if used anywhere near a concentration of noncombatants.
But the reported trend in the latest generation of nuclear weapons is towards
much smaller and far more accurate devices, and it is these devices that must
be considered — in the light o{ all of the circumstances of a given situation — in
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assessing the lawfulness of a potential use. The Court seems to have made no
effort to inquire into the characteristics of such weapons, 175 apparently finding
it more convenient to make assumptions based upon knowledge acquired in
earlier decades and undocumented assertions made by critics who quite likely
were also not privy to information on highly classified defense programs of the
nuclear-weapons States.
Thus, the President of the Court concluded that:
Nuclear weapons can be expected — in the present state of scientific
development at least — to cause indiscriminate victims among combatants and
non-combatants alike, as well as unnecessary suffering among both categories.
The very nature of this blind weapon therefore has a destabilizing effect on
humanitarian law which regulates discernment in the type of weapon used. . . .
Until scientists are able to develop a "clean" nuclear weapon which would
distinguish between combatants and non-combatants, nuclear weapons will
clearly have indiscriminate effects and constitute an absolute challenge to
humanitarian law. 176
The present writer has had no access to classified information on this topic
in well over a decade, but judging from readily available press reports it seems
likely that modern nuclear weapons have already satisfied this requirement. A
report in Time magazine in connection with the recent confrontation between
Saddam Hussein and the UN Security Council, for example, noted that "New
weapons with ever increasing accuracy led the Pentagon to be confident that
few will stray, thus limiting what military euphemists refer to as 'collateral
damage' — innocent, but dead, civilians." 177 It notes that in the September
1995 attacks on Bosnian Serb strongholds that led to the Dayton Accord, the
Air Force reported 97 percent accuracy of its "smart bombs" — far superior to
the success record in Operation Desert Storm less than five years earlier. By
using Global Positioning System (GPS) satellites for guidance (rather than
lasers, which could be thrown off target by smoke or bad weather), and new
high-tech fuses that can actually "count" floors in an underground bunker and
explode only upon reaching a pre-selected level, the United States had
achieved weapons of unprecedented accuracy. 178
Because of the increased accuracy, most targets can be defeated by the use of
conventional high-explosive warheads, such as the GBU-28 179 and GBU-35 180
5,000-pound "bunker busters;" however, the highly regarded Aviation Week &
Space Technology quotes a retired senior Air Force general as saying "You can't
attack all the chemical and biological weapons storage sites" in Iraq, because
"[s]ome are too far underground. . . ." 181
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Frank Robbins, Director of the Precision Strike Weapons Technology
Office at Eglin Air Force Base in Florida, was quoted in Defense Week as stating
that GPS-guided munitions "could hit a target the size of a man's upper torso
within a metropolitan area as large as . . . Washington-Baltimore." 182 However,
when that man's upper torso-size target is buried deeply underground, below
the range of any conventional weapon that can be carried by the latest U.S.
bombers, 183 the only means of deterring a foreign tyrant considering launching
an aggressive war — or neutralizing his supply of weapons of mass destruction
before they can be fired at the civilian populations of neighboring States — may
be with a nuclear warhead.
The Bulletin of the Atomic Scientists reported in late 1997 that the United
States had earlier that year deployed the B61 earth-penetrating nuclear
warhead to destroy "superhardened" or "deeply buried" targets "with great
precision and bewildering agility, no matter their location." 184 The article
asserts that the United States is seeking the ability to destroy "underground
targets, with greater discrimination," for possible counterproliferation
purposes, and that one recent report by nuclear weapons experts suggests that
"a small nuclear warhead [like the B61] is the best way to neutralize anthrax
agents." The present writer emphasizes that he has no personal knowledge
about any of these programs, but assuming for the moment that these generally
well-connected sources are correct, they identify critically important military
missions which might not be achievable through the use of conventional
ordinance. While it is obvious that the legality of any particular use of such
weapons must be determined in the context of the purpose for which it is used,
projected collateral damage, and other considerations, it is equally clear that
not every use of such weapons would be unlawful. Indeed, one could easily
conceive of settings in which such a use of nuclear weapons would claim few if
any noncombatant lives, while in the process saving millions of lives that might
otherwise be vulnerable to weapons of mass destruction.
Once again, the utility of such weapons must also be evaluated in terms of
their contribution to maintaining peace by deterring potential aggressors from
initiating conflict. If small nuclear weapons make it possible for the United
States to place the potential aggressor State's leadership at risk, and to
neutralize an anthrax bomb before it can harm anyone, this serves both to
diminish the perceived value of anthrax weapons and to place at personal risk
decision makers who may be contemplating threatening the peace. Both of
these consequences are highly desirable — irrespective of whether such
weapons would ever actually be used in combat.
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Perhaps it was inevitable — and even wise — for the Court to refrain from
making a detailed speculative inquiry into the technological characteristics of
modern nuclear weapons. But without doing so, the Court obviously lacked the
knowledge necessary to draw legal conclusions based upon the application of
the legal principles it had identified as being germane to the threat or use of
these weapons. Its conclusions must therefore be considered in the light of this
shortcoming.
There are some very able, knowledgeable, and respected military
professionals who have concluded that nuclear weapons are unnecessary and
inherently immoral. 185 Their technical understanding of such weapons is far
superior to that of the present writer, and in terms of the actual use of such
weapons they may well be right. Surely, anyone with an ounce of sense realizes
that nuclear war would be horrible beyond description. But precisely because of
their perceived horror, the existence of these weapons has ironically thus far
been a powerful force for world peace. And with admitted exceptions, military
and political leaders in the democracies who know the most about these
weapons continue to believe they have military utility. 186
Nuclear Weapons as a Force for Peace
Perhaps it is time for a "reality check." Strategic nuclear weapons are
capable of incomprehensible devastation, and it doesn't require a World Court
decision to make this point. It is not coincidental that they have not been used
a single time in more than half-a^century since they were first developed and
used to bring an end to World War II. One can only pray that they will never
have to be used again.
But one can also look back at the Cold War era and realize that the world
might well be a far different place today had such frightening weapons not been
introduced into national inventories. They have imposed a level of sanity on
world leaders who otherwise had considerable incentives to promote violent
change. Largely because of the respect among decision makers on all sides for
the consequences of nuclear conflict, an unstable political confrontation that
might easily have resulted in World War III was replaced by nearly
half-a-century of political struggle and occasional detente, punctuated on
occasion by relatively minor 187 coercive settings on the periphery of the
presumptive battlefield.
The foes of nuclear weapons will not acknowledge it, but it is quite probable
that the existence of nuclear weapons was the single most important factor in
keeping Europe at peace for nearly half-a-century following World War
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II — longer than Europe had experienced peace in many centuries. To be sure,
the standoff was frightening and the risks of error were horrific; but the
existence of a nuclear-armed NATO probably saved tens of millions of lives in
Europe alone.
Complete Disarmament Is an Impractical Dream
In a 1793 letter to James Monroe, Thomas Jefferson remarked, with his
characteristic perception: "I believe that through all America there has been
but a single sentiment on the subject of peace and war, which was in favor of
the former. . . . We have differed, perhaps, as to the tone of conduct exactly
adapted to secure it." 188 We may also have differed on the price to be paid for it,
for as John Stuart Mill once noted:
War is an ugly thing, but not the ugliest of things: the decayed and degraded state
of moral and patriotic feeling which thinks nothing worth a war, is worse. ... A
man who has nothing which he is willing to fight for, nothing which he cares
more about than he does about his personal safety, is a miserable creature who
has no chance of being free, unless made and kept so by the exertions of better
men than himself. 189
Who doesn't want peace? No rational, sane citizen of any country favors war
when peace can be had without price, and the vision of a world without war is
enticing. A simple — perhaps overly so — logic suggests that since wars are
fought with weapons, if we can just rid the world of weapons we can guarantee
peace. Wars, by this theory, result largely from the existence of weapons and
from military imbalances which promise benefits for the strong. (The wisdom of
this theory is easily established by reviewing the past two centuries of
U.S. -Canadian relations.)
Since we all in principle favor peace and would welcome a world in which all
beings lived in peace and respected the rights of others, it follows that we would
incorporate the aspirational goal of general and complete disarmament in
precatory language designed to make everyone feel good at the conclusion of a
less ambitious effort to control instruments of war — as was apparently done in
Article VI of the NPT. 190 This is not to suggest that the parties were disingenuous
in committing to pursue negotiations "on a treaty on general and complete
disarmament under strict and effective international control" — presumably
every peaceloving State would favor such a goal, if the control machinery were
certain to be effective and could be implemented without totally undermining
the sovereignty of individual States and the privacy of their citizens — but it is
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likely that only the most naive delegates anticipated witnessing the conclusion
of such an agreement in their own lifetimes.
Professor Richard B. Bilder is but one of many respected commentators to
observe that the "nuclear genie" is "out of the bottle," and that "[t]here are
already over 50,000 of those weapons, knowledge of how to build them will
never disappear. . . ." 191 Certain chemical and biological weapons are even
simpler to build and to conceal. The inability of the world community to
control illicit drugs provides some insight to this dilemma, and much of that
activity takes place despite serious efforts by host States to prevent it. Those
who recall the experience of the Gulf War will realize that it is necessary to be
able to send inspectors not only to established military installations and
chemical or medical laboratories, but also to inspect such places as "baby milk"
factories 192 — and quite likely alleged "religious" and "cultural" properties as
well. Indeed, one might anticipate that if any single category of facility were
declared "off limits" for inspectors, that would be the most attractive place to
engage in prohibited behavior.
One would certainly expect a clever leader who wished to engage in covert
development and production of prohibited weapons to try to "raise the costs of
inspection" by concealing such activities in locations that might prove
embarrassing for foreigners to enter, and then to use political warfare
techniques to intimidate and discredit the inspectors if they nevertheless
endeavored to do their job. At the same time, potential violators would
presumably demand the most intrusive inspections within democratic
States — both as an intelligence-gathering technique and as a means of
pressuring other States to accept what might be called "informal
accommodations" which would lessen the mutual inconvenience of
inspections (and probably in the process make them virtually meaningless). 193
Professor Almond has observed: "Because disarmament agreements are very
difficult to verify without major intrusions into the territory of each of the
parties, the possibility of concluding such an agreement is slight." 194 Other
experts have made similar points. 195 It is also clear that the closer one comes to
total disarmament, the more significant a small amount of "cheating" becomes
and thus the greater the incentive to cheat. In a world with tens of thousands of
nuclear weapons, a State that can covertly manufacture half-a-dozen nuclear
devices is not going to dramatically transform the balance of power — especially
if the Security Council can remain functional. But if all law-abiding countries
eliminate all of their nuclear weapons — and, pursuant to the Court's
interpretation of Article VI of the NPT, their conventional weapons as
well — then the incentives for an ambitious tyrant to secretly build a small
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inventory of prohibited weapons are considerably enhanced. A tyrant with a
global monopoly on weapons of mass destruction, and a willingness to actually
use them, would be a powerful actor indeed. So, in the absence of "strict and
effective international control" to guarantee (assuming that were even
theoretically possible) that no State was "breaking the rules," an unenforceable
agreement requiring States to destroy all nuclear weapons (or all weapons of
any kind) could well prove highly counterproductive to such Charter values as
international peace, human dignity, and freedom.
Today, any tyrant contemplating building nuclear weapons for aggressive
purposes must consider the assurances of the world's strongest military powers
that they will come to the defense of any NPT party that is a victim of
aggression or a threat of aggression involving nuclear weapons. 196 That is a
fairly strong disincentive: Why bother to build a small nuclear stockpile to
harass your neighbors if the immediate consequence will be to bring you into
conflict with the major nuclear powers? We must ask why the World Court
seems so anxious to undermine this disincentive, in the process increasing the
relative political and military value of a small stock of illicit nuclear weapons
(and thus the incentive to acquire them) perhaps a thousand-fold?
Any country that pretends to take seriously the vision of general and
complete disarmament ought first to be willing to demonstrate the
effectiveness of such a concept at the national level. Let them first take the
guns and clubs from their own military and police forces, remove all kitchen
knives from their homes, and display for the world to admire a functioning
Utopian model of universal peace and tranquillity without the threat or use of
force. (To paraphrase a comment once made about the practical shortcomings
of socialism: "nice idea; wrong species.") Until that is done, the serious business
of trying to promote a more peaceful world ought not be distracted by such silly,
dangerous, illusions.
G
iven the political nature of the entire process, and the risk that under
pressure from so-called "peace" groups, NGOs, and numerous
Third-World States, the Court would have ignored the law and pronounced a
dangerous new doctrine limiting the rights of States to use nuclear weapons to
deter aggression and defend themselves and their allies if necessary, one must
on balance view the advisory opinion with relief and some satisfaction.
Basically, the Court got the law right. It overwhelmingly concluded that there
is no conventional prohibition per se against the threat or use of nuclear
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weapons, and similarly found no rule of customary law to support the position
embodied in the General Assembly Resolution. It also quite properly noted
that, like all weapons, nuclear weapons may not be used in violation of jus ad
bellum or jus in hello — such as to commit aggression against a prohibited target
or in a manner disproportional or unnecessary to the legitimate defensive needs
of a particular situation. It also noted that the highly destructive nature of such
weapons, and the commonly associated collateral effects like fallout and
radioactive contamination, clearly made such weapons unsuitable for any but
the most serious of settings. From the standpoint of its proper function and the
rules of international law, had the opinion stopped there it would have been
not only unobjectionable but quite commendable.
From a political standpoint, however, such an opinion would have been less
than ideal, as it would have constituted a complete rejection of the views of the
countries and NGOs that had championed the initiative. While the Court's
courage in resisting political pressure on the fundamental legal issues raised by
the request is commendable, its decision to go further and include language
apparently carefully designed to placate this considerable political bloc (and
presumably the personal preferences of several of the judges) is regrettable. The
decision led the Court first to depart from the judicial task of identifying and
applying legal principles to specific facts associated with the highly technical
and secretive field of modern nuclear weapons technology for which it lacked
both the necessary factual information and the scientific expertise to make
meaningful judgments; and secondly to gratuitously address an issue that had
not been part of the request — and, more sadly still, to arrive unanimously at the
wrong answer.
As has been discussed, the Court's speculation about possible uses of nuclear
weapons that might comply with existing jus in bellum quickly took the judges
into a realm where they lacked sufficient expertise or information to make
sound judgments. Apparently (and understandably) not being familiar with the
characteristics of the latest generation of nuclear weapons, the Court seems to
have assumed that any such weapons would necessarily and indiscriminately
slaughter hundreds of thousands if not millions of combatants and
noncombatants alike; and trying to hypothesize any scenario in which such
conduct would not conflict with the laws governing military operations was, not
surprisingly, difficult.
Trying to emphasize the extreme nature of any such exception, the Court
spoke in terms of defending against a threat to the survival of a State — which is
not a bad example of a situation in which resort to a nuclear weapon might be
justified. But it is hardly the only example. It would seem clear, for example,
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that a victim of aggression that concluded that the use of nuclear weapons
against an aggressor's underground stockpiles of weapons of mass destruction
(or hardened military delivery systems for such weapons) was the only defense
likely to save the lives of tens of millions of its citizens — even though the State
might ultimately "survive" with even half of its original population — would be
permitted under international law to make use of such weapons. The mere
threat of such a defensive response is still less objectionable as a means of
dissuading aggressive intentions.
As an aside, some confusion may result from a misreading of the quite
accurate and important language in paragraph 47 of the Court's opinion
linking the lawfulness of a "threat" to use force with the underlying question of
whether the actual use of force in that setting is permissible under the Charter.
The Court concluded:
The notions of "threat" and "use" of force under Article 2, paragraph 4, of the
Charter stand together in the sense that if the use of force itself in a given case is
illegal — for whatever reason — the threat to use such force will likewise be illegal.
In short, if it is to be lawful, the declared readiness of a State to use force must be
a use of force that is in conformity with the Charter. 197
This is correct. But it does not follow that this rule — which governs jus ad
helium and is associated with Article 2(4) of the Charter — applies in analyzing a
threat or use of force under jus in hello. A State is required to consider the
probable magnitude and risk of collateral damage to noncombatants when
deciding whether it is lawful to attack an otherwise lawful military target, and
for that reason, some tyrants find it convenient to place important military
targets in the middle of population centers — presumably hoping that even if it
remains "legal" for a country like the United States to attack the target (which
it generally does) , considerations of humanity and more pragmatic concerns of
public opinion will act as a deterrent. But a threat to use nuclear (or other)
weapons in a defensive response to armed aggression does not endanger the
interests protected by international humanitarian law. 198 Since, as already
noted, the aggressive threat or use of nuclear weapons is already prohibited by
the Charter, any analysis of potential defensive behavior needs to discriminate
between actual use (which must comply with jus in hello) and expressed or
implied threats aimed at enhancing deterrence. Deterring armed international
aggression, after all, is an important Charter value.
The legal test that ought to be used in responding to the General Assembly's
question is not whether the Court majority successfully anticipated every
future act of aggression which might legally be met with a particular defensive
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nuclear response, but whether in every given situation the use of such weapons
necessarily violates some governing legal principle. The Court's ignorance
about recent (or future) technological developments in the characteristics of
nuclear weapons does not alter the principle legal conclusions of the opinion.
The proper test of the lawfulness of nuclear weapons is precisely the same as the
test applied to any other weapon that has not been expressly banned: Does the
action under all of the relevant circumstances violate any applicable provision
of international law?
Applying this test, it is abundantly clear that:
Nuclear weapons may not be used aggressively, or in any other manner contrary
to a State's relevant treaty commitments;
Nuclear weapons may not be used contrary to any applicable rule of customary
international law binding upon the State considering their use; 199
Nuclear weapons may not be used against targets prohibited by international
1 200
law;
Nuclear weapons may not be used even defensively except consistent with the
legal rules which constrain the use of all force in self-defense and collective
self-defense, such as necessity, proportionality, and discrimination.
These principles are uncontroversial, unobjectionable, and fully consistent
with United States military doctrine dating back more than four decades. 201
Beyond that, the Court's speculation that the horrendous inherent
characteristics of all nuclear weapons would preclude any use from satisfying
these legal tests that did not involve a threat to "the very survival of a State" is
only legally meaningful to the extent that the Court's comprehension of the
nature of such weapons — today and tomorrow — was accurate. The legally
significant point to the opinion is the test to be applied, not the prescience of
the judges in foreseeing every conceivable circumstances that might threaten a
State in the years ahead, or their perspicacity in understanding current military
technology. To the extent the Court's uninformed and speculative
inquiry — one might better say noninquiry, as there was little evidence of serious
inquiry in the opinion — into the technical nature of modern nuclear weapons
was unsoundly premised, the legal conclusions seven of the fourteen judges
drew from that factual predicate are of little value. They certainly do not
constitute binding rules limiting the conduct of States.
351
Nuclear Weapons and the World Court
As much as the sponsors of the General Assembly request may have wished,
once the Court properly recognized that neither conventional nor customary
international law prohibits the defensive threat or use of nuclear weapons (so
long as such conduct complies with the law of armed conflict), the Court
clearly lacked the authority to modify those legal rules to conform to the
political preferences of members of the Court or a plurality of members of the
United Nations. Therefore, the Court's subsequent speculation about possible
settings in which the use of such weapons would comply with the laws of armed
conflict may have been a useful reminder of the potential horror of nuclear
weapons, but to the extent it was premised upon factual error or limited vision,
it is of no legal significance. The test remains whether a threat or use of nuclear
weapons is consistent with the relevant rules of international law under all of
the specific circumstances in which it occurs. It is a good test, and it is precisely
the test that the United States has long recognized as controlling. The fact that
the judges who most strongly favored a per se prohibition on the threat or use of
nuclear weapons found it necessary to dissent from the majority opinion stands
in clear refutation of the "spin control" efforts of antinuclear activists to portray
the advisory opinion in a light more favorable to their political perspective. The
clear reality is that they lost, and, as ironic as it may seem to some, the cause of
international peace and effective deterrence emerges clearly victorious from a
proper reading of the case.
Notes
1. This does not include all of the thirty-five countries which earlier submitted opinions in
the companion request by the World Health Organization for an advisory opinion, which was
rejected by the World Court as exceeding the proper jurisdiction of the organization.
2. Unlike the U.S. Supreme Court, which by the Constitution is limited to deciding
"cases" or "controversies" (U.S. CONST, art. Ill, §2) the World Court is expressly authorized to
give nonbinding "advisory opinions" to the Security Council, General Assembly, and other UN
organs to assist them in fulfilling their own responsibilities. See U.N. CHARTER art. 96; I.C.J.
STAT. arts. 65-68.
3. The CND "Information Officer" wrote in a letter to the editor: "I sat in the
International Court of Justice while it ruled that the threat or use of nuclear weapons was illegal
under international law." Letters, THE INDEPENDENT (London), July 11, 1996, at 17. See also,
Christopher Bellamy, World Takes First Steps to Ban the Bomb, id. July 9, 1996, at 1 ("Last night,
anti-nuclear pressure groups, including CND, were claiming victory. . . ."). The CND web page
(http://mcb.net/cnd/cndtoday/winter97/) includes an article from CND Today (Winter 1997)
which interprets the case as establishing that "The threat or use of nuclear weapons is illegal in
all conceivable circumstances," and notes that "The Court . . . found no nuclear weapon which
could comply" with international humanitarian law. (Of course, by similar reasoning, one might
note that the Court did not identify any nuclear weapon which could not under any
circumstances comply, but how many people will read the actual case?) Interestingly, the article
352
Robert F, Turner
asserts that individuals being prosecuted in European courts for "serious anti-nuclear actions"
(e.g., destroying government property) were successfully citing as a defense the ICJ Nuclear
Weapons case. For readers who are not familiar with the CND, it was the original
"ban-the-bomb" group established in Great Britain more than four decades ago and is perhaps
most famous for having originated the so-called "peace sign," using a black circle around a
vertical line with what might be described as an inverted "V" joining the line in the center. This
symbol represents the international semaphore flag code for the letters N (flags extended
downward on both sides at 45 degree angles from the legs) and D (left flag down, right flag above
head — creating the appearance of a vertical line), signifying "Nuclear Disarmament."
4. A Greenpeace spokesman declared that "The ruling, in fact, means that any use or
threat to use nuclear weapons could be in breach of international law," and declared the opinion
to be "much stronger than I expected." Disarmament: World Court Decision "Misunderstood"
INTER PRESS SERVICE, July 10, 1996, available in 1996 WL 10768077.
5. The American co-president of this group characterized the opinion as "much better
than what we expected." Jonathan C. Randal, World Court: Nuclear Arms Mostly Illegal, WASH.
POST, July 9, 1996, at A12.
6. This statement is based upon personal conversations by the writer with lawyers who
took part in arguing the case.
7. For an excellent summary of the background to both the WHO and UNGA resolutions,
see, Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 3 Quly 8) [hereinafter cited as
Nuclear Weapons], (Dissenting Opinion of Judge Oda at 3-23). See also Lt Col Michael N.
Schmitt, USAF, The International Court of Justice and the Use of Nuclear Weapons, 51 (2) NAVAL
WARC. REV. 91, 92-94 (Spring 1998); and Nuclear Weapons, Statement of the Government of
the United Kingdom, June 1995, part II at 3-5.
8. Japan Mum on World Court Refusal to Rule on Nuke Use, KYODO NEWS
INTERNATIONAL, INC., July 15, 1996, available in 1996 WL 7593453.
9. Id.
10. See, e.g., Asides: In Their Opinion (editorial), WALL ST. J., July 15, 1996, at A12
(characterizing the case as ruling "that the threat or use of